LAW OF EVIDENCE STUDY UNIT 1.1: AN INTRODUCTION TO THE LAW OF EVIDENCE Prescribed: S v Gambushe Ch.1 Textbook Key Questions What is the LOE? - Area of law that governs the proof of facts in a court of law – it indicates what facts can be received by the court (which facts are relevant and how much weight the court can attach to those facts) - It is a branch of procedural law o Procedural law acts as the machine that transforms the rules of substantive law into orders and enforcements o Without procedural law, substantive law does not have meaning – procedural law gives effect to substantive law Remember the distinction: - Substantive law – determines the rights and duties of parties; originated from Roman Dutch law - Procedural law – procedural mechanisms to enforce rights and duties; originated from English law Significance of LOE - Important to enforce rights and duties in terms of procedural law - To determine which facts are admissible to prove the facts in issue What is the function of the LOE? - Admissibility: Determines what facts can be admitted into evidence to prove the facts in issue – courts must make a finding on the existence (or non-existence) of certain facts before making a pronouncement on the rights in a dispute o Short answer: admissible if relevant o Collateral question: what evidence may be received by a court? - Manner of presentation: Determines the manner in which evidence should be presented to the court; orally, electronically etc - Determines what evidence should not be considered by the court - Identifies the factors influencing the probative value of evidence - Determines what evidence can be lawfully withheld from the court what rules should be taken into account in assessing the weight or cogency of the evidence: what standard of proof should be given in a situation, be satisfied before a party bearing the BOP - Provides rules for assessing the weight or cogency of the evidence - Provides the standard of proof which should be satisfied before a party bearing the burden of proof can be successful Where does LOE fit in our legal system? - It is a branch of procedural law (adjectival law) which originates from English law - Acts as a bridge in the gap between criminal and civil procedure (it is not always easy to distinguish between the two; there may be cases in which the two has similar functions such as enforcing rights and duties) - Linked to criminal and civil procedure History and Theory of Law of Evidence History of LOE in SA A strict system of evidence is used in SA Basis of our LOE = English law By looking at the history, you can find the rationale behind many LOE rules When looking a rule and being asked to criticize it – look at its history and the rationale behind it, and determine whether its context is still relevant in present day society The history and development of LOE was developed in 3 phases 3 categories: - Religious/primitive stage o During this time, it was thought that a person should not sit in judgement of another person o “Trial by ordeal” was considered an almost perfect aid in truth-finding 1 o o - - Popular in England Thought the judge of a legal dispute should be God, thought that humans should not stand in judgment of each other o God should “decide” on the outcome of the factual dispute – if they favored you, you would win your case o Anglo-Saxons had implemented different types of ordeals: “Ordeal of the accused morsel” If a person was accused of a crime, they were required to swallow a dry piece of bread, accompanied by a prayer. If they were guilty, there were hopes that they would choke on the bread. If you were innocent, God would protect you Logic behind this was that if you were guilty you would choke because you were nervous “Trial by battle” Norman novelty Idea that a dispute could be settled by a duel – person who died was guilty Our legal system can be derived from this idea physical confrontation gradually developed into verbal confrontation We now have trial by argument The formal stage: o Moved away from supernatural determination - Resulted from an increase in human reason, people turned their backs on old, irrational methods o God = replaced by a human judge to decide guilt or innocence o In England they used oath helpers: someone who could give under oath a guarantee that the witness should be trusted. Your innocence was determined by the amount of oath helpers that guaranteed in your favour They would usually have knowledge in the case – primary method of proof This was a formal procedure in the sense that the tribunal was still not required to give weight to evidence There are traces of this in present day law o This introduced the idea of an oath it is told that an oath is the strongest rule in/hold on a person’s conscience – is this still the position? o Presently witness still speak under oath Rational stage and the development of the jury: o The significance of oath helpers increased o The role of oath helpers evolved, and they began to serve as adjudicators (jury) Were called due to their knowledge on a particular event As the population expanded and the matters before courts changed, the oath givers generally no longer had knowledge of events o Witnesses were then called into court to give their personal knowledge on facts of a particular matter o With the introduction of witnesses, there was a distinction between jurors and witnesses Witnesses testified Jurors determined facts on the basis of testimony – they set aside their personal knowledge on the matter; a juror had to have no knowledge of the facts and the idea of impartiality was introduced o Our systems of law are based on a jury system juror = someone who has no idea of facts that occurred in the dispute, jurors are impartial and are a blank slate, and the facts of the case would be told to them by witnesses o Impartiality is still a very important factor in courts today o Impartial litigator who oversees the process o Witnesses would bring their personal knowledge to court in their testimony o Development: Personal knowledge held by juror prior to testimony would disqualify the juror (like a judge should recuse themselves today if there is a personal tie to the case) as had to be impartial o Juror did not have to determine admissibility of evidence because they are laypersons, they might fall into the trap of believing particular evidence that is unreliable Developed into the jury system and the idea of an independent adjudicator o Admissibility of evidence therefore became a matter of law o A distinction was made between a juror and a judge 2 o Jurors determined the facts Judges determined the law Why did judges consider the admissibility of evidence a matter of law? The judges had to guard against the discrepancies that could arise due to laypersons presenting evidence in court Laypersons have no real knowledge of the law, hence the need for judges Judges had to prevent undue weight being placed on evidence and certain facts Example: Character and hearsay evidence are inadmissible Question: Should we still have a system of evidence that was designed for jury trials when we no longer use a jury in SA? Abolishing the Jury system No longer have the jury system in SA in criminal and civil matters, abolished in 1927 and 1969. But we still have an evidentiary system that is based on jury and trials - Disadvantage: we have a system that is based on people who didn’t have knowledge of the law - We have a strict, exclusionary system of law and this can be restrictive for judges who do know the law - Evidence had to first pass test of admissibility before the jury could hear it - A lot of our rules of evidence were developed with a jury in mind, even though we no longer have a jury - Do we still need these strict rules, given that we no longer have a jury system? o Yes o This is because in lower courts in SA still use assessors, which have a similar role to jurors o Assessors are fact finders, they do not make legal determinations o Assessors are co-finders of fact, they work with the judge in respective ‘fact finding’. o They are guided by the judge and they have to provide reasons for their disagreement with the judge o This is why it makes sense to retain an element of the jury system Jurors and assessors o Lay assessors are used in the lower courts (MC & HC) o Assessors can be compared to jurors in that they are fact finders – do not engage with legal issues o Important distinction is that assessors are co-finders of facts with the judge and must give reasons for their verdict in a separate judgement o Assessors are generally laypersons depending on whether they were appointed in terms of the MCA or CPA S v Gambushe 1997 1 SASV 638 (N) Section 145(1) MCA 32 of 1944 CPA 51 of 1977 Court constituted 1 Magistrate and 2 assessors Involved accused who had been found guilty on two counts of murder in a MC, and the primary testimony was given by a single witness as to what happened before the murder and after Assessors made a finding based on this witness testimony, that the accused was guilty Assessors outnumbered the magistrate in this case Reason: the witness, even though his testimony was confused and convoluted, had no reason to turn the accused in if he didn’t do it Mag said that in law we treat the testimony of a single witness with extreme caution Single witness was a poor witness Mag said that the matter had not been proven beyond reasonable doubt, and the Mag disagreed with the assessors BUT on the base of s 93(2)(a) Magistrates Court Act, accused was found guilty : this is because the finding of the majority of the members of the court determines the outcome of the case This is obviously problematic Judge expressed reservations about the ability of an assessor who is generally a layperson, to assist a judge in deciding the guilt or innocence of the accused (Side question: Do you think that there is still a need for assessors or are the use of such laypersons problematic?) Matter went on appeal to HC On appeal: 3 - - - - HC faced with the problem that people who don’t have knowledge of the law making a decision based on the law Concurring judgment: there is something to be said about section 93(2)(a) MCA Assessors appointed in terms of this section are lay persons, the aim of the provision is to help the judge and bridge a gap between the judge and the accused . They are members of the community, aim to ensure that the accused is not measured according to a yardstick that doesn’t match his or her personal circumstances Unfortunately a repercussion of this provision is that the assessors sometimes outnumber the Mag Court said must distinguish between assessors appointed in terms of s93(2)(a) MCA and appointed in terms of s145(1)(b) Criminal Procedure Act S93(2)(a) MCA – allows use of assessors that can help court with fact finding process; selection of the assessors under this section is to be kept in mind when deciding how to approach evidence given by witnesses; judicial officers must give regard to the accused’s cultural and social environment, educational background, nature of offence and any other factors that the court may deem relevant; purpose of this section is the bridge the ap between the magistrate and the large number of accused person’s who generally appear before the court; the assessor is essentially a layperson; they facilitate a “trial by peers”; these assessors must be provided with certain guidances since they are laypersons S145(1)(b) CPA – an assessor is a person who has experience in the administration of justice or has a skill in any matter that may be considered at the trial; an expert of sorts; CPA assessor = more knowledgeable of criminal law If s93 assessor, they must be guided by the magistrate, explain the law and the reasons for the rules and they must understand the legal principles. This must also be kept on record in order for the appeal court to be able to read what the assessors were told and informed of This judgment sets out the ground rules to help us in applying s93 HC set aside the finding of the MC Evidentiary systems of LOE: Anglo-american system: - Based on strict rules of evidence 4 - SA uses this system – strict CL system - Adversarial system - Stems from trial by jury Continental system (civil law/ free system): - Based on Roman Law - Judge examines matter and decides on the matter – no jury; trial by professional judge - Professional judges - Inquisitorial process - Free system of evidence where judges actively ask questions Our LOE is developed on the basis of the jury system, which is why we have an accusatorial system o CCMA and small claims court is more inquisitorial but there are general principles common the both systems Focus on the determination of truth – not sacrificed for simplicity or speed Both parties must be given opportunity to present their case o Small Claims Court works a bit differently Accusatorial v Inquisitorial Procedure o Accusatorial/adversarial system Trial by battle The oath is seen as the strongest hold on the conscience of persons Judge plays a passive role Used in MC, HC, SCA, CC Premise? Greater approximation of the truth is possible if the litigants are allowed to present their own evidence in a process that guarantees cross examination of its opponents and all witnesses Right to cross examination is fundamental; witness evidence given orally o Inquisitorial system Judge centered Judicial examination – pivotal mechanism in fact finding Used in small claims court o What are the advantages and disadvantages of each system? (check textbook) How is the small claims court (SCC) different to ordinary courts? o SCC is inquisitorial o S 26(3) SCC Act: a party shall neither question nor cross-examine any other party to the proceedings (or a witness called by the latter party) o Commissioner plays an inquisitorial role Can request whatever evidence he deems fit; may question any party or witness at any stage of the proceedings o SCC is not bound by a strict system o S 26(1) says that the commissioner may hear relevant facts in the manner of the court’s choosing The rules of the law of evidence shall not apply in respect of the proceedings in a SCC Usually in ordinary courts, the judicial officer will try to hear evidence orally; even if there is a document, you’ll hear evidence orally In the SCC, the commissioner may simply take the document for what it is – may decide there is no need to verify its authenticity with oral evidence Certain exceptions – ch 5 of the Act o The SCC is a radical and far-reaching departure from our normal evidentiary system o SCC = no legal representation; parties must state their cases themselves Except in certain circumstances o When the law commission investigated whether the SCC would be viable: Normal proceedings are formal and technical; they exclude a large part of the population who do not have access to legal rep and might be confused as to how the legal process works Can take the case from beginning to end yourself in the SCC SCC is much more accessible and promotes procedural simplicity 5 o o With time, technicality and legal assistance come high costs – SCC is cheaper The inquisitorial role of the presiding officer and the absence of legal rep is easier and faster; don’t have to adhere to the strict rules of evidence Can resolve matters much more quickly The commissioner in the SCC does not play a passive role: actively asks questions Essentially represents both parties and the law The strict system of evidence in normal courts presents a barrier for people to access justice Traditional Court Bill o Not in TB; take note of this Traditional Court Bill [B1-2017] SINCE the remaining provisions of the Black Administration Act, 1927, and some provisions of former homeland legislation still regulate the resolution of disputes by the institution of traditional leadership, are in stark conflict with constitutional values; AND SINCE there is a need to provide a legislative framework to replace the current inadequate legislative framework in order to— ● address certain abuses prevailing in some traditional courts as they currently exist; ● protect the public interest; and ● enhance accountability in the resolution of disputes in accordance with evolving customs and practices in the new constitutional dispensation o Could be asked 2 marks e.g. what are the aims of the Bill? Basic Concepts and Sources of LOE Basic concepts and distinctions Facta probanda and facta probantia - Facta probanda: facts in issue o Facts which a party must prove in order to succeed – disputed facts o Usually determined by substantive law o Facts in issue can be reduced by formal admissions ito S115 CPA: required accused to make an explanation of plea, which allows him to explain reasons for his plea of guilty - Facta probantia: facts relevant to the facts in issue o Tend to prove the facts in issue o Usually determined by the rules of procedure - Example: Determining who the father is (without DNA test) - Identity of father (facta probanda) & showing there was sexual intercourse with the alleged father (facta probantia) Evidence and proof - Proof: court received and accepted the fact as truth o Court has received probative material with regard to such fact and has accepted such fact as being truth for the purposes of the specific case o Standard of proof: Criminal case: beyond reasonable doubt Civil: balance of probabilities - Evidence: not yet proof, and the court must evaluate o The court will only act upon evidence which is has been proven to be fact o Real proof: physical e.g. DNA, murder weapon o Documentary: threatening letter o Oral evidence made in court under oath - Example: Accused in murder case alleges that his gun was stolen 3 days before the murder in question. This constitutes evidence because it is not proof that the gun was stolen, only after the court has accepted this statement as truth will it constitute proof. Conclusive proof v prima facie proof - Conclusive proof: cannot be rebutted or disproved o Proof which has been taken as decisive and final o E.g. it has been proved that the child was 8 years old and sexual intercourse took place 6 Prima facie proof: can be rebutted o Proof to the contrary is still possible o In the absence of proof to the contrary, prima facie proof will become conclusive proof Admissibility and weight of evidence - Admissibility: if what has been adduced can, in law, be put before the court, it is admissible o There are no degrees of admissibility o Once admissible, however, can carry more or less weight according to the particular circumstances of the case o The court weighs or evaluates evidence to determine whether the required standard of proof has been attained o After the evidence has been admitted, and at the end of the trial, court will assess the final weight of the evidence - Conditional admissibility: o Evidence may be admitted on condition that some basic defect which renders it inadmissible is cured during the course of the trial o Rare o If cured during the trial, the evidence will be admitted (if not – not admissible) Evidence and argument - Evidence: received by the court to evaluate - Argument: persuasive comment by parties with regard to questions of fact or law o Can lead an argument with regard to the admissibility of evidence o Comments made by parties do not constitute evidence Evidence and probative material - Evidence: o Narrow terms – relates to oral, docs and real evidence o Oral evidence: oral statements made in court under oath or affirmation or warning o Documentary evidence: documents o Real evidence: objects produced and received in court o Not the only means of furnishing proof S v Mjoli even though an accused’s admission made during the explanation of plea in terms of s115 CPA is not evidence by the accused, it is still ‘probative material’ and there is therefore no impediment in the way of a trial court to use against the accused material furnished during such procedure o Explanation of plea = not given under oath or affirmation and therefore cannot be classified as evidence o S v Mokgeledi formal admissions do not constitute evidence Formal admissions dispense with the need to adduce evidence to prove facts in issue, and must be classified as probative material o S v A R Wholesalers confirmed that presumptions also do not constitute evidence - Probative material: o All of the above o Convenient terms to include not only oral, documentary and real evidence, but also: Formal admissions Judicial notice Presumptions S115 CPA statements which do not amount to formal admissions Circumstantial and direct evidence: - Circumstantial evidence often forms an NB component of the information furnished to the court o Circumstantial evidence is a tricky area of law because courts have to draw inferences from this type of evidence, and there are rules that the court must apply o Witnesses make no direct assertions about the facts in issue o This is in cases where the witnesses have made no direct assertions with regard to the fact in issue o Must comply with rules of logic o Indirect proof - Direct evidence is when a fact is directly proven by such evidence (direct evidence re the facts in issue) - 7 Test for criminal cases = R v Blom: where there is circumstantial evidence, an inference drawn must be reasonable Primary and secondary evidence - This distinction is NB with regards to documentary evidence o Primary: does not, by its very nature, suggest that better evidence is available E.g. original document (will/contract etc) o Secondary evidence: is admissible, but by its very nature, does suggest that better evidence is available E.g. copy of document - We have a rule in our law called the ‘best evidence’ rule best evidence must be brought before the court i.e. the original document - But, in certain instances the court might accept a copy of a document (secondary evidence) this must be in accordance with certain rules - S3(4) of Law of Evidence Amendment Act – know this definition – not verbatim but know it - Relevance of evidence o Not easy to describe o Van Wyk’s definition is NB: “evidence is relevant when it possesses the ability to, whether alone or with other evidentiary material, to make the existence of a fact in issue, directly or indirectly, more or less probable” o There are degrees of relevance, from irrelevant, to relevant, to highly relevant o If it is completely irrelevant, it will not be admissible o As soon as it becomes relevant, it is admissible, but we still attach varying degrees to the weight of the specific piece of evidence o E.g. witness that saw murder taking place – this is relevant and admissible We then listen to the witness’ testimony and it is, for example, inconsistent or erratic, so we don’t attach too much weight to this evidence o Meaning and determination of relevance: multiple possible definitions Stephen’s classic formulation: “the word ‘relevant’ means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other” Rule 401 of the Federal Rules of Evidence of the USA defines relevant evidence as: “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or les probable than it would be without the evidence” DPP v Kilbourne (per Lord Simon): “evidence is relevant if it is logically probative or disprobative of some matter which requires proof. I do not propose to analyse what is involved in ‘logical probativeness’ except to note that the term does not of itself express the element of experience which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say…that relevant evidence is evidence which makes the matter which requires proof more or less probable” Privilege o Privilege is the right or duty of a witness, including a party to the case, to lawfully withhold evidence from a court of law o Private and state privilege o Private privilege = marital privilege; privilege against self-incrimination o State privilege (also called public privilege) = regarding state secrets; governmental interests Formal and informal admissions o Formal Made in court/in the pleadings Person who is accused admits to whatever he is being accused of Usually considered to be ‘conclusive proof’ of the fact admitted Formal admission can only be withdrawn or contradicted if certain requirements are met; generally binding on their makers Narrows down the issues Intention is very NB – did he intend to make an admission? 8 Intention determined by means of a subjective test E.g. someone admits to killing someone, but not that he did so intentionally o Informal Outside of court E.g. tells friend what he did Constitutes an item of evidence May be contradicted/’explained away’ Weight given to this evidence by a court varies depending on surrounding circumstances Not as powerful as a formal admission that forms conclusive proof Might be of such a nature that it gives rise to additional issues e.g. was it made freely and voluntarily? Do not have to be aware that you are making an informal admission Confessions o Comprehensive out of court informal admission by the accused of all the elements of the alleged crime o Unequivocal acknowledgement of guilt: if it were made in court it would have been accepted as a plea of guilty o Very strict requirements depending on who you make the confession to e.g. police officer or judge Will discuss in more detail later Just know there are very strict requirements Judicial notice o Court may accept certain facts as proved even though no evidence was led to prove such facts o Facts of a general or local knowledge E.g. SA has 9 provinces – general knowledge E.g. Stellenbosch is home to the wine route – local fact; could be general knowledge E.g. of a piece of local knowledge: Pokkel is the Matie Mascot Presumptions o 3 kinds of presumptions: Presumption of fact: inference from the evidence E.g. someone saw someone else drinking 20 beers in one night; safe to presume that they were then drunk An inference of probability which the court may draw if on all the evidence it appears to be appropriate Court is not obliged to draw the inference dictated by a presumption of fact if such an inference would not accord with common sense Some say it is misleading to call these presumptions, as they reflect no more than ordinary reasoning and common sense Irrebuttable presumptions of law: mostly rules of substantive law Furnish conclusive proof of the fact presumed and cannot be rebutted by evidence to the contrary E.g. a child under 10 is presumed to be incapable of discerning between good and evil, so she cannot be held to be criminally or delictually liable Rebuttable presumption of law: assumption must be accepted if no evidence to the contrary is proven/given Rules of law within the law of evidence compelling the provisional assumption of a fact; provisional in the sense that the assumption will stand unless it is destroyed by countervailing evidence E.g. presumed to be the father of the child if you are married to the mother of the child o Unless proven otherwise; done through DNA testing today 9 1.2 Sources of Evidence Prescribed: S v Lwane Ch.3 Textbook Our LOE is derived primarily from English law and SA law Statute: - Criminal Procedure Act 51 of 1977 - The Civil Proceedings Evidence Act 25 of 1965 - Law of Evidence Amendment Act 45 of 1988 - Where the legislation is silent on a matter? Section 227 CPA: “(1) Evidence as to the character of an accused or as to the character of any person against or in connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, is alleged to have been committed, shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May, 1961.” o The inadmissibility or admissibility of character evidence of an accused in a sexual offence case is determined by the law as it was on the 30th of May 1961 o Legislation is silent on this matter, doesn’t really tell us HOW the law applies or what the rules are, just says that it applies as it did in 30th May 1961 o What was the law in 30 May 1961? Apply English Law This means that English law applies The day after this SA became a republic – but until that point we followed English common law – this by extension is also our CL of evidence Are you applying statute or case law? English Statute: Not followed after the date of incorporation this is that date when each of the four colonies incorporated the English law of evidence by means of legislation For interests sake: o Cape in 1830 o Natal in 1859 o FS and Transvaal in 1902 After the date of incorporation, apply the statute of each particular colony i.e. follow English law up until 30 May 1961, thereafter only refer to SA cases SA cases decided in accordance with English common law as at 30 May 1961 (day before we became a Republic) We are not required to look at English law currently, as it stands now unless there is a lacuna (gap) No case law on the matter in SA E.g. cyber security – new development English cases post 1961 only have persuasive value, they are never binding o Is the law of evidence frozen as of 30 May 1961? No, it is not. o The SCA and CC can deviate from English case law, where those cases were wrongly decided, or the decisions reached in those cases do not comply with the Constitutional dispensation. English case law only remains in force till set aside by higher courts. o Can also deviate from older case law where there is an established rule of practice. See S v Lwane (accused not informed of his right to not answer incriminating evidence. Court held that there was an established rule of practice in SA which justified the deviation from English law) o Constitution is always present, supreme law Privy Council decisions: English Judicial Committee o Follow decisions up until 1950 o Post 1950 decisions are of mere persuasive value When faced with an evidential problem apply: Legislation 10 SCA or CC decision English Privy Council decisions up until 1950 Between 1950 and 1961 follow the House of Lords decisions (Van der Linde v Calitz) Impact of the Constitution? Incorporation of English law How was the English law incorporated into SA law? Before 1910, i.e. before SA became a Union, incorporation of the English law of evidence occurred through direct and indirect incorporation o The English law of evidence was incorporated through passing legislation which set out English common law rules and principles – this was direct incorporation o Where there was no express local statutory provision dealing with something, the English law of evidence had to be followed e.g. as in case law – this was indirect incorporation Only if our statutes were silent on a matter o Occurred in the different colonies of our Union Cape, Natal, Transvaal Criminal proceedings post-union Early colonial legislation was superseded by and consolidated in the Criminal Procedure and Evidence Act of 1917 Later replaced by CPA 56 of 1955 o This Act specifically excluded English law where SA legislation expressly dealt with the matter o Had to look at English law where there was a provision which stated that the matter must be dealt with according to the law as applied “in the Supreme Court of Judicature in England” o Where there was such a provision, you had to look at English law o There were also residuary clauses which invoked the English law with regard to issues not expressly covered by SA legislation Then the Union became a Republic o Legislature thought it was inappropriate to expressly refer to other countries in our own statutes o Criminal Procedure Amendment Act 92 of 1963 referred to “the law as it stood on 30 May 1961” – no reference to England/English law CPA 51 of 1977 (current Act) o Still retains the 30 May 1961 provisions o Examples of topics in our law of evidence in criminal proceedings that are still covered by references to the law as it stood on 30 May 1961: impeachment/support of a witness, privileges (private and state), privilege against self-incrimination, character of an accused Civil proceedings post-union Most colonial provisions incorporated into Civil Proceedings Evidence Act 1965 o Also has a 30 May 1961 provision Finding a Source Legislation SCA or CC decision English Privy Council decisions up until 1950 Between 1950 and 1961 follow the House of Lords decisions (Van der Linde v Calitz) Is the law of evidence frozen at 30 May 1961? The SCA can deviate from earlier English cases if they were wrongly decided and CC can declare common law rule unconstitutional If there is an established rule of practice, then deviation is allowed S v Lwane It is to a certain extent frozen; the English common law remains That includes English case law that we have followed or relied on and pieces of legislation 11 o o o Most of these interpretations are still valid Most of the previous legislative documents were simply transcribed into new ones There are certain instances where our courts have moved away from the binding effect of the 30 May 1961 provision Exceptions to 30 May 1961 rule: o Where an English decision is considered to be incorrect, SA courts may deviate from an English decision E.g. SA courts have consistently followed a specific English case; suddenly someone picks up on something that makes the case wrong A very high court would have to make this finding e.g. our SCA/CC o Where the SA rules of practice are incompatible or inconsistent with English law, the English principle may be rejected Rules of practice are something that is not legislation but informal rules of practice E.g. S v Lwane 1966 (A) [prescribed] Pre-constitutional decision Facts: o Appellant was charged with certain crimes, along with three other accused o Appellant (accused no. 3) and one other accused (accused no. 1) were convicted of murder and sentenced to death o The murder took place on 18 January 1965 o Three days after the murder (21 January 1965) accused no. 1 shot the appellant which landed the appellant in hospital – he laid a complaint of attempted murder against accused no. 1 o In relation to that complaint, the appellant made a statement to a policeman (“the deposition”) o In making the deposition, appellant made a confession relating to the murder on 18 January o Before making the statement, the appellant was not warned that he was not obliged to make a statement which might incriminate him, nor was he informed that he was not obliged to answer any questions out to him if the answers might incriminate him Not informed of his right to silence or his privilege against selfincrimination o However, the statement was made entirely voluntarily, and it seemed that the appellant wanted to ‘make a clean breast of everything’ Legal question: was the deposition admissible in the murder trial of the appellant? Judgement: o General point of departure is that evidence given on a previous occasion will ordinarily be admissible against the deponent in subsequent proceedings o In English law, the absence of a warning from the court does not make a witness’ incriminating statement inadmissible in subsequent proceedings A judge will often warn a witness that he is not obliged to answer incriminating questions, but there is no rule to this effect, and the fact that the witness was ignorant of his rights does not make his evidence inadmissible in subsequent proceedings o Court held that the English law prior to 31 May 1961 is applicable to our law of evidence o However, in order to exercise their privilege against self-incrimination, the witness must be aware of that privilege o SA population: largely ignorant of their rights; unaware that they are entitled to decline to answer incriminating questions o It is a general practice of our courts to inform a witness, whenever the occasion so demands, of his rights to decline to answer an incriminating question This practice has been generally observed in our courts There is a duty on the presiding officer to warn the witness Firmly established o This is not an absolute duty 12 o If the rule is not complied with, that does not necessarily mean that the witness’ incriminating statement will always be inadmissible in subsequent proceedings Depends on the facts and circumstances E.g. if the witness is a trained lawyer, they cannot complain that they received no warning – expected to know their rights o Conclusion: the English law rule is qualified in our law by the established rule of practice in our courts that it is the duty of the presiding officer to inform a witness of his right to decline to answer an incriminating question Effect of non-observance of the rule on the admissibility of the incriminating statement in subsequent proceedings depends on the particular facts of the case Important factors: nature of the incriminating statement; ascertained/presumed knowledge of his rights by the deponent o NB: this is an exception to the 30 May 1961 rule because an SA rule of practice was found to be inconsistent with English law o Application of this conclusion to the facts: Appellant was an uneducated black person without legal assistance He was at all times ignorant of his rights Appellant falls within the class of persons who should be warned that they are not obliged to answer an incriminating question When one has regard to the nature and ambit of the incriminating statements, they also point to the need for a warning Instead of confining the appellant to the shooting incident, the police caused him to relate the full and technically irrelevant details of the crime he was charged with, causing him to grievously incriminate himself in relation to those charges If appellant had been properly informed of his rights, he might have abandoned his ‘clean breast’ approach and confined himself to the relevant details of the shooting incident o In the circumstances, the fact that the appellant was not informed of his privilege against self-incrimination renders his deposition inadmissible against him at the subsequent trial o This conclusion vitally affects the appellant’s conviction – would very likely not have been convicted had the evidence not been admitted o Conviction therefore set aside If an English rule is inconsistent with constitutional provisions, it must be ignored E.g. if something is not in line with the right to a fair trial If S v Lwane were to be heard today, could also argue that the rule was inconsistent with the right to a fair trial Where possible, courts must develop the applicable English common law rule in terms of s 39(2) of the Constitution Privy Council Decisions Follow decisions up until 1950 The Privy Council Appeals Act of 1950 abolished appeals from the Appellate Division to the judicial committee of the Privy Council Post-1950 decisions of the Privy Council therefore only have persuasive force Lower courts in SA are bound by the decisions of the Appellate Division, followed by the pre-1950 decisions of the Privy Council, followed by pre-30 May 1961 decisions of the English appeal courts and House of Lords SCA may disregard a pre-1950 Privy Council decision if convinced that it was wrongly decided Other sources Criminal Procedure Act (CPA) 13 Criminal Proceedings Evidence Act (CPEA) Law of Evidence Amendment Act (LEAA) These are not comprehensive codes governing the law of evidence, but they are the main sources Other legislation like the prevention of Organised Crime Act (POCA) o Made a significant impact of the law of evidence where it concerns organised crime Impact of Constitution Statutes and common law must be in line with the Constitution unless it is a justifiable limitation Rights of the accused Unconstitutionally obtained evidence Some rules of evidence have been elevated to constitutional rights o Presumption of innocence o Right to a fair trial o Right to legal representation Most far-reaching constitutional provision = s 35(5) o Exclusion of unconstitutionally obtained evidence Use of foreign jurisdictions is now constitutionally mandated – may use these decisions as guidance o S 39(1)(c): when interpreting the Bill of Rights, a court may consider foreign law o Should be carefully evaluated in light of the conditions and circumstances existing in that jurisdiction, and the facts of the case before the court Classification (The LOE and Substantive Law) Why is the distinction between substantive and procedural law important? - Because each has an important purpose, and the two interact Is the distinction always clear? - No it is not, it is easy to misclassify the law sometimes Why is this distinction sometimes unclear? - Certain adjectival rules provide for rights and duties as well, which is usually done by substantive law - Some rules of substantive law result in the exclusion of evidence – the exclusion or inclusion of evidence is usually a law of evidence rule, which are procedural in nature Substantive law - Comes from RDL - States the rights and duties which persons hold - Irrebuttable presumption o NB: IPs direct a court to accept a situation as conclusively proven, once certain other basic facts have been proved o E.g. s57(1) Sexual Offences and Related Matters Act (Criminal Law Amendment Act 32 of 2007) child under 12 does not have the capacity to agree to a sexual act – substantive rule simply stated by the legislation which the court applies o Section 7 of the Child Justice Act 75 of 2008 – a child under the age of 10 does not have criminal capacity and cannot be prosecuted for such a defense o Irrebuttable presumptions are substantive rules – once something is proven, a presumption is made which the court simply applies - Estoppel o Meaning: a party is precluded from denying or asserting a particular fact o Estoppel by representation Where a person makes a representation to another, who, believing in the truth thereof, acts theron to his prejudice. The representor is then precluded from denying the truth of the representation Leads to the exclusion of evidence of representor – is this an evidential rule - Parol Evidence rule o What is the parol evidence rule? If jural act is incorporated in a document, it is not permissible to adduce extrinsic evidence of its terms Extrinsic: evidence other than the actual document itself 14 o Exception: extrinsic evidence can be applied to a document to: Show terms different to those contained in the document integration rule Show the meaning of the terms contained in the document interpretation rule Integration rule: The process of embodying the terms of a jural act in a single memorial o Formation from scattered parts into an integral documentary unity o Consequence of this rule: these ‘scattered parts’ do not have any jural effect When a jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally immaterial for the purposes of determining what are the terms of their act Interpretation rule: Relates to interpreting and showing the meaning of the actual terms that are contained in the document Issue = not in the content of the document, but in the meaning thereof o This does lead to the exclusion of evidence, but is it an evidential rule? In terms of the parol evidence rule, the document is the only source of admissible evidence However, this does not mean that the rule is an evidential one Rather, we look at the parol evidence rule as a rule of substantive law: De Klerk v Old Mutual Insurance Co Ltd o “Where a contract has been reduced to writing, the written document is regarded as the sole memorial of the transaction and deprives all previous inconsistent statements of their legal effect. The document becomes conclusive of the terms of the transaction which it was intended to record. The result is that previous statements by the parties on the subject can have no legal consequences and are accordingly irrelevant and the evidence to prove them is inadmissible” Rather think of the document as constituting the jural act. If you were to follow this train of thought, it would necessarily follow that whatever other actions of the parties may have accompanied the jural act, as a matter of substantive law, simply form no part thereof This being said, such actions would be irrelevant to the act, and consequently would be inadmissible as a matter of evidence o Exceptions to this rule: If a written contract is not intended to cover the terms of the transaction all-inclusively, evidence of further oral terms is not precluded Documents which are considered a mere narration of an event Rule does not exclude evidence which throws light on the true nature of a transaction referred to in a written document or to identify an illegible signature or determine the capacity of a signatory (even where the law requires the agreement to be in writing) Extrinsic evidence to determine the validity of a transaction is admissible (may be shown by oral evidence that a contract is void for fraud, mistake, illegality, impossibility or lack of consensus) However, where writing is required by law, evidence cannot be produced of oral terms not included in the written document in order to invalidate the transaction through noncompliance with the requirement of writing Would have to apply for rectification o Rectification: The document is made to conform with the jural act that underlies it “All the court does is to allow to be put in writing what both parties intended to put in writing and erroneously thought that they had” Weinerlein v Goch Buildings In order to effect the rectification of the written document, extrinsic evidence is admissible to show that the document does not correctly reflect the consensus between the parties Adjectival law - Comes from English Law - Procedural mechanisms through which rights and duties are enforced 15 Burden of proof o Determines who wins or loses a case in instances where the court is unsure o Allocates the risk of non-persuasion o Tregea and another v Godart and another 1939 = leading, but doubtful, authority Issue in this case was the validity of a will Plaintiffs sought the rejection of the will on the grounds that the testator did not have the mental capacity to execute a will Much depended upon who carried the burden of proof Who bears the BOP? If following substantive law when answering this question RDL would apply, and the BOP would lie on the plaintiff If following the Law of Evidence/adjectival law English law would apply, and BOP would lie on defendant Appellate Division said that BOP is a matter of substantive law (lays down what must be proven by who) and therefore plaintiff bore BOP o Schmidt and Rademeyer say that this was incorrectly decided BOP is not deciding what must be proved It is rather to decide who proves what Substantive law determines the facta probanda (facts in issue) BOP determines the manner in which facta probanda are to be proved and therefore it is LOE Depends on substantive law, but it is not determined by it We need to classify these types of law, so we do not apply the wrong system of law - Is this distinction always easy to make? o No because sometimes procedural law creates rights and duties, we also have rules of substantive law that have the impact of excluding evidence - 16 STUDY UNIT 1.3: BASIC CONCEPTS AND DISTINCTIONS She loves to test this chapter Prescribed: Ch.2, Ch.30 (only 30.5-30.5.4), Ch.31, Ch.32, Ch.4 (only 4.1-4.4) R v Blom, R v Blyth BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS BURDEN OF PROOF: Allocates the risk of non-persuasion The obligation on a party to persuade the trier of facts by the end of the case of the truth of certain propositions this is a policy instrument It determines who wins and loses a case when the court is uncertain how the matter should go – party who bears the burden of proof loses the case should they not be able to prove what needs to be proven The state bears the burden of proof in criminal matters – expresses the societal view that the society protects the innocent party Principle of finality s 106(4) and 108 CPA o Accused is entitled to a verdict once he/she has pleaded o Presiding officers must make a finding in every case irrespective of deficiencies in the evidence o Finding must be made in accordance with principles of fairness and justice In a criminal case: the state bears the burden of proof State also bears the evidentiary burden o Evidentiary burden is the duty of one party to produce sufficient evidence for the judge to call on another party to answer o Also refers to the duty to adduce evidence in rebuttal o Does the burden of proof shift? No, but the evidentiary burden can shift Once a prima facie case is established, the evidential burden will shift to the accused to adduce evidence in order to escape conviction It is possible that even if the accused does not adduce evidence, he will not be convicted if the court is satisfied that the prosecution has not proven guilt beyond a reasonable doubt - S v Alex Carriers o Court contrasted the burden of proof resting on the prosecution and the accused’s evidentiary burden as follows: accused experiences a necessity of rebuttal; this is not a burden of rebuttal o Necessary to rebut or you might be convicted o The quantity and strength of the rebutting considerations required by the accused to prevent the state producing a convincing case depends on the strength of the state’s case o The accused has to do nothing more than to cause the court, when reaching its decision, to have a reasonable doubt concerning the guilt of the accused Why is the onus on the state? Policy reasons o “Better to let ten guilty people go free than convict one innocent person” o Serious consequences of a criminal conviction Criminal record; deprivation of freedom (iniuria); dignity infringed o It is a very heavy onus State against individual State has a lot of resources; imbalance of resources o Civil matters: presuppose that parties are equal Fundamental presumption of innocence o Innocent until proven guilty o State must prove you to be guilty beyond a reasonable doubt; prove all the elements of a crime through a legitimate court process He/she who alleges must prove The ambit of the state’s onus of proof: - State bears burden as to prove the identity of the perpetrator and every element of the crime 17 o - - This is in line with the general rule that the burden of proof falls on the party that seeks to change the status quo of innocence o State is required to prove the absence of any defence raised by the accused e.g. the absence of private defence o Where the accused raises an alibi (usually the case where the identity is uncertain) state must prove his identity more certainly o Where there is video evidence/witness testimony, identity is not as much of an issue Exceptions to the general rule o Exceptions to the general rule that the burden of proof rests on the state to prove guilt beyond a reasonable doubt o These exceptions are infringements of the constitutional rights to be presumed innocent and to remain silent Will be tolerated only if they meet the requirements of the limitations clause o Example: Mental illness or mental defect o S 217(1)(b)(ii) CPA o S 332(5) CPA o S 6(3) Gambling Act o S 37 General Law Amendment Act 62 of 1955 (possession of stolen goods – provide an explanation why you are in possession of stolen goods) Mental illness or intellectual disability o Exception to the situation where the state has to prove the elements of a crime beyond a reasonable doubt o Substantive law defense: Sections 78(1A) and (1B) of the Criminal Procedure Act: 78(1): “A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable (a) Of appreciating the wrongfulness of his or her act or omission; or (b) Of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, Shall not be criminally responsible for such act or omission (1A) Every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 78(1), until the contrary is proven on a balance of probabilities (1B) Whenever the criminal responsibility of an accused with reference to the commission of an act or an omission which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue.” o Criminal capacity when not present/if the accused cannot prove criminal responsibility – means that the state cannot prove an element of the crime o S 78(1) is a ‘then question’: refers to the situation as it was at the time of the commission of the alleged offence Test: an accused shall not be criminally responsible for the commission of an offence if at the time of the alleged offence he was, on account of mental illness or intellectual disability, unable to appreciate the wrongfulness of his act, or to act in accordance with such an appreciation o Presumption that all people are of sound mind; everyone presumed not to suffer from a mental illness/intellectual disability o Onus falls on whoever raises the issue of criminal responsibility to prove the contrary; usually this would be the accused When the accused has to prove something, the onus is on a balance of probabilities On the rare occasion that the state raises it, the onus on them to prove it would also be on a balance of probabilities This is the combined effect of s 78(1A) and 78(1B) o Placing this burden on the accused absolves the state from proving this element and in most cases they are in any case assisted by the presumption 18 o o o Is this onus a violation of the passive defence right? Is the common law and statutory presumption of sanity, and its concomitant rule that the accused must prove his/her s 78(1) defence on a balance of probabilities, constitutionally tenable? R v Chaulk (Canadian case) – only know what is in TB Although the presumption of sanity infringed the constitutional right to be presumed innocent, it was a reasonable limitation Underlying rationale: would be impossible for state to prove that every accused was sane at the time of the commission of the crime; much easier to operate with a presumption and to disprove the presumption Procedural issue: non-triability due to mental illness or intellectual disability s 77 CPA “77 Capacity of accused to understand proceedings (1) If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on...” S 77 is a ‘now’ question: look into the situation at the time the accused is standing trial Won’t affect person’s capacity so as to understand nature of proceedings Not a substantive law defence Does not raise an issue of criminal liability Section 78 and 79 do not apply BRD Question: Is the accused able of understanding the proceedings so as to make a proper defence? Test: if it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness/intellectual disability not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of s 79 Non-triability is not an element of the crime; simply cannot try the accused Not focusing on accused’s state of mind at time of commission of crime, but at the time of standing trial E.g. Devani case – could not stand trial; not in the state to stand trial S 78(1A) and (1B) not applicable Onus rests on the accused to prove the mental illness/intellectual disability, and once this has been established, the state bears the onus to prove that despite the intellectual disability/mental illness, accused still has the capacity to understand the proceedings so as to make a proper defence Both onuses are on a balance of probabilities S 79: can also send the accused for observation and then determine whether on a balance of probabilities, he/she is able to stand trial This is one of the instances where we must know the specific section numbers (s 77 and 78(1)); usually we can refer to just “CPA” and, with cases, to one of the party’s names Further procedural matters Criminal defamation and the provisions of s 107 CPA o There is a general common law duty that you have to introduce your defence at latest during crossexamination But, when you are dealing with criminal defamation, there is a general duty on the accused to state his substantive law defence when he is called upon to plead o Three aspects of a defence to a claim of defamation: Either that it was true Or in the public interest And that it must have been published o In your pleading, you must state these three aspects o General point of departure is that you don’t have to introduce your defence until cross-examination, but here you must introduce it during pleadings/during a plea examination in terms of s 115 19 o This is merely a procedural requirement; does not absolve the state from its burden of proving unlawfulness Unlawfulness being that it was not true or not in the public interest and that it did not require publication o Not a reverse onus, just alleviates state’s task to disprove every possible defence State can now focus on this specific defence Courts act with circumspection when dealing with the defence of non-pathological criminal incapacity o This is where the defendant argues not that he suffers from a mental illness, but that in the moment he was overcome by e.g. extreme anger or emotion to such an extent that the criminal capacity element is excluded o Must do more than merely raise the defence; must lay some sort of foundation Does not mean there is an onus of proof on the accused, merely means that the accused has a procedural duty to raise the issue during the trial so that the state is able to concentrate upon the real issue o S v Eadie Must at least lay a foundation for your defence of temporary non-pathological criminal incapacity; state bears the onus of proving that he/she had criminal capacity at the relevant time, but the state is assisted by the inference that someone is acting consciously and voluntarily o If you raise this defence, you at least have to create some kind of reasonable doubt – court has to make a finding based on the evidence and surrounding circumstances o S v Moses: two lovers had unprotected sex; the one informed the other that he was HIV+ and the other person went into a hysterical angered state; chased him around with knives These circumstances would point to the possibility of such a defence o Extremely difficult to prove such a defence Duty to introduce a defence: - Put to witnesses that are being cross examined or introduce in terms of s115 CPA - Procedural duty on the accused to raise his or her defence during the trial so that the state can concentrate on the actual issues (so the state does not end up disproving every possible defence; if a defence is not raised, it need not be disproved) - Note: The duty to introduce a defence does not automatically mean that there is an onus to prove on the accused - The duty to introduce a defence simply means that there is a procedural duty on the court Application for discharge Section 174 CPA: The accused may be discharged at close of case for prosecution - “If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty” - Once the state has proven a prima facie case, then there is an evidentiary burden on the accused o If you don’t do anything to rebut the case, you might be held liable - What if the state does not prove a prima facie case? o This is where s 174 comes in o Defence can either raise it, or the court can of its accord own raise it (especially where there is an undefended accused) - Test set out in S v Shuping and Others o At the close of the state’s case, when discharge is considered, you ask firstly whether there is evidence on which a reasonable person might convict? If yes, no discharge, go ahead with the trial If no go to next step o Is there the reasonable possibility that the defence may supplement the state’s case? If yes, no discharge If no, discharge What is strange about this second step? Expecting/hoping that the accused will strengthen the case against himself 20 - - - - - Does this section give courts a discretion? Prior to Constitution – courts had a discretion to grant discharge or not, but the court would often not grant discharge in the hopes that the accused will take the stand and incriminate himself After enactment of Con: o Presumption of innocence – state must prove entire case o Right to remain silent and Privilege against self-incrimination o S v Legote The SCA held that where the accused is unrepresented, the court has a duty to discharge at the close of the state’s case in the absence of a prima facie case This is a recognition that unrepresented persons are particularly vulnerable Note: The principle of equality states that this should be extended to represented accused persons too o S v Lubaxa Court took it further here, and stated that regardless of whether the accused is represented or not, the court has a duty to discharge if the only reason for refusing discharge was the belief that the accused may incriminate himself (where there is no prima facie case, must grant discharge) o S v Nkosi SCA took the view that Lubaxa cannot be used as a blanket precedent in granting the discharge of co-accused R v Kritzinger 1952 (W) – pre-constitutional case o Absolute discretion on the judicial officer o Can still refuse discharge even when there is no evidence against the accused o This meant that discharge could be refused where there was a reasonable possibility that the state’s case could be supplemented by the accused himself – this is constitutionally suspect Then the Constitution came into effect S v Mathebula 1997 (W) o The court curtailed this discretion; limited it o The discretion was curtailed so much that it became basically non-existent o Bellengere says the second leg of the test and its discretion is impermissible in light of this case o The court in Mathebula held that if the answer to the first leg of the test is no, the court must discharge the accused o This case went further to say that the duty to prove guilt falls squarely on the state; if the state, at the end of its case, cannot prove any evidence against the accused, it is not fair to continue a trial in the hope that the accused/his co-accused might bring incriminating evidence o This would be a violation of the privilege against self-incrimination, right to a fair trial, right to remain silent, right to be presumed innocent, freedom, right not to testify o Greatly unfair to consider possible further evidence which may or may not be tendered if the state has failed to prove its prima facie case o This rule would apply when there is NO evidence against the accused (not where there is scant/little evidence; the court could then exercise its discretion not to discharge) – Mathebula therefore limited its own judgement Could argue that it should not even go to trial if there is no evidence o When you exercise your discretion not to discharge when there is no evidence, it would actually render the trial unfair o Court also said that it is not a justifiable limitation on the above-mentioned rights; it is grossly unreasonable o If you discuss/refer to Mathebula, remember what the case said, what Bellengere said S v Jama 1998 (N) o Applied and approved Mathebula S v Legote o Duty to discharge Unrepresented accused Extends to the represented accused 21 - - SCA also added their own judgement to the above HC judgements: court has a duty to discharge when there is no prima facie case, especially where there is an unrepresented accused Although they did not do this, it was submitted that the principle of equality requires that the same duty be extended to the represented accused S v Lubaxa o Whether an accused is unrepresented or not, discharge must be granted, if the only reason for refusing discharge was the belief that the accused may incriminate himself o What if there is a co-accused? o Both represented and unrepresented accused are entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself o Moving away from terms like ‘no evidence’ to ‘no prima facie case’ o Added something further: if there is no possibility of conviction Their wording differs from Legote, who said ‘no prima facie case’ o Confirmed that the court may on its own motivation discharge; accused does not need to raise it o Have the right to be discharged; vested in your right to personal freedom and dignity o These rights may only be infringed upon where there is some kind of reasonable/probable cause to believe that the accused is guilty o Judge Harms said that these principles seemingly don’t apply when you have more than one accused – obiter More acceptable to have your co-accused incriminate you in some way; it is not then selfincrimination Privilege against self-incrimination does not apply It is unclear why the rights to dignity and freedom of person cease to be infringed merely because the prosecution has chosen to prosecute more than one person jointly Could be that this scenario is more acceptable because the refusal of discharge is not premised on the possibility that the accused will incriminate himself, but rather that the co-accused will complete the prosecution task S v Nkosi o Court a quo refused to hear s174 application on the basis of Lubaxa o Appeal court said that Lubaxa is not a blanket precedent o Uncertainties raised by Lubaxa partially addressed in this case o Court seems to take Judge Harms’ words very seriously o In the court a quo, the state failed to establish any evidence against first appellant on which a reasonable person might convict o We know that normally this person would be discharged, but in this case there were co-accused: court a quo refused to hear an application for discharge merely because multiple accused were involved, invoking the judgement in Lubaxa o On appeal, the court said that there is no blanket rule that such an application should be refused where there are multiple accused – this is not the effect of Lubaxa o The first appellant’s right to a fair trial had been compromised through the court a quo’s refusal to even hear the application for discharge as there was no “reasonable basis for the expectation that his co-accused might incriminate him” o Cannot execute a blanket refusal where there are co-accused on the basis of Lubaxa Conclusion: if there is no evidence against an accused at the close of the state’s case, the court must, of its own accord if necessary, discharge the accused whether represented or not o The weight of authority favours discharge in the absence of a prima facie case This will most likely be asked as a theory question, rather than an application question Know what Shuping said, what s 174 says and what these cases say, and what the rules applicable to defended and undefended accused are (Legote) STANDARDS OF PROOF IN A CRIMINAL CASE Criminal case: beyond reasonable doubt 22 - - Prosecution must lead evidence to prove every element of the crime and identity of the perpetrator beyond reasonable doubt The existence of any doubt will not prevent a conviction – the doubt must be reasonable If a judge has a doubt that the accused is guilty, does this prohibit the court from convicting the accused? o No What does reasonable doubt mean? o There is no set definition o Reasonable doubt generally means that it has to be reasonable on probabilities based on standards accepted by society and generally accepted knowledge and experience What happens if the state makes its case, but does not make a prima facie case against the accused? o The court could either on its own accord, discharge the accused based on s174 o SCA has limited the discretion of a court Unrepresented accused the court must grant discharge if the pf case has not been made against the accused Does this extend then to represented accused in light of the principle of equality? Lubaxa: must grant discharge if the only reason for not granting discharge is bc the accused may incriminate himself, UNLESS co-accused who may incriminate each other BURDEN OF PROOF AND STANDARD OF PROOF IN CIVIL MATTERS: BURDEN OF PROOF: Duty on litigant to adduce evidence that is sufficient to persuade court the claim or defense should success Plaintiff carries risk of non-persuasion in civil cases, versus the state in criminal cases o He who carries the onus carries the risk of non-persuasion: risk of not persuading the judicial officer and failing at the end of the trial if the facts that are necessary to establish the claim or the defence have not been proved o Usually on the plaintiff, with certain exceptions Allocates the risk of non-persuasion Civil cases: who bears the burden of proof is determined as a matter of substantive law General rule: he who alleges must prove (generally falls on the plaintiff) BOP does not shift - Example loan repayment - Plaintiff bears burden to prove that the loan was made - But the defendant alleges that the loan was repaid, the BOP is on defendant The evidential burden? - Shifts from party to party, where such party has proven what they need to prove - Pillay v Krishna 1946 AD – only know what is said in class and the textbook o ‘onus’ means the duty cast upon a litigant to adduce evidence that is sufficient to persuade a court, at the end of the trial, that the claim or the defence (as the case may be) should succeed o True onus lies with the plaintiff o Duty on particular party to prove their case in order to be successful - Textbook: repayment of a loan o If any case for loan repayment, plaintiff bears proof that loan was repaid - Where the onus lies is determine by substantive law e.g. in contract or delict, it determines what a litigant has to prove in order to prove their case - Often, precedent also determines where the onus lies - She who alleges must prove - Onus of proof be differentiated from the evidential burden which is the duty cast upon a litigant to adduce evidence to rebut a prima facie case made by his opponent (unless you rebut certain claims/a prima facie case, it might become conclusive proof) o Burden of proof does not shift o Evidentiary burden does not shift o This is not the true onus, merely a burden placed on one party in order to prevent the other party from winning o Evidential burden can shift throughout the case Has to prove identity beyond reasonable doubt E.g. you have a contract 23 - - Plaintiff has to prove existence of contract Contract has certain terms Opposing party can say that this doesn’t look like the contract they signed, and then they produce some evidence that they in fact have the true contract Plaintiff has to rebut this allegation Shows how evidential burden shifts throughout the case Where the incidence of the burden of proof in relation to a particular rule of law has not been authoritatively settled, it is necessary to refer to the general approach set out in Pillay v Krishna: sets out three general rules o Firstly, “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it” o Secondly, “where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, ten he is regarded as the claimant in relation to that defence: for his defence to be upheld he must satisfy the court that he is entitled to succeed on it” o Thirdly, “he who asserts, proves and not he who denies, since a denial of a fact cannot naturally be proved…the onus is on the person who alleges something and not on his opponent who merely denies it” o Explanation of Pillay v Krishna: Onus is on someone who alleges something and not on an opponent who merely denies E.g. if X is suing Y for an outstanding repayment of a loan Onus is on X to prove his case Onus cannot be on Y who merely denies that there was a loan – difficult to prove the absence of something o But may fall on different parties in relation to different issues o Where there are several and distinct issues (e.g. a claim and a special defence), then there are several and distinct burdens of proof A special defence (commonly asked question): E.g. plaintiff argues there was a loan – bears onus of proving existence of loan; defendant admits that there was a loan but unnerves the plaintiff’s case by introducing new facts e.g. that he has repaid the loan Then defendant carries the onus of the special defence to prove that he has in fact repaid the loan If there is any kind of uncertainty re whether the loan has in fact been repaid, defendant will most likely lose the case because he has acknowledged the existence of the loan Burden on the defendant is not that high – balance of probabilities Another example: rental agreement Plaintiff would have to prove existence and terms of rental agreement Defendant admits to the existence of the rental agreement but argues that he has paid all his rent If he cannot prove that he has paid the outstanding amounts, he will most likely lose because he has acknowledged the existence of the rental agreement Onus does not shift What might happen is that each of the parties might bear the burden of proof in relation to separate issues in the trial Two specific and separate onuses They have to prove two separate and distinct things DO NOT say that an onus shifts with a special defence; they are two separate distinct onuses; the true onus lies with the plaintiff General principle is that the party who makes a positive assertion must generally prove it (usually the plaintiff), unless there is a special defence raised Pillay v Krishna pointed out that all rules relating to the burden of proof are ultimately based on reasons of experience and fairness o Does this mean that the burden of proof should rest on a party with exclusive knowledge of the facts? o Courts have said no, the incidence of the burden of proof cannot be changed merely because the facts happen to be within the knowledge of one of the parties, but the courts will take cognisance of the 24 fact that the other party labours under a handicap in such a case and less evidence will then suffice for that party to establish a prima facie case Impact of the Constitution on the onus Under the common law, the incidence of the burden of proof was determined by the right in issue o Mabaso v Felix 1981 (A) Claim for bodily injuries Plaintiff alleged defendant assaulted him Defendant relied on private defence Court said that civil law dictates that considerations such as policy, practice, and fairness between parties require that defendant bear the onus of justifying his otherwise unlawful act Textbook authors argue that the general rule of onus does not explain this special incidence, nor does its qualification General rule = he who alleges must prove Qualification = a special defence must be proved They say that these rules do not explain the decision in Mabaso However, the decision in Mabaso can be explained on the basis that he protection of fundamental rights (in this case, bodily integrity) requires that the defendant should bear the burden of proving his respective defence o Minister of Justice v Hofmeyr 1993 Claim for unlawful arrest and detainment Fundamental rule = every individual’s person is inviolable; may not be violated Courts have adopted the approach that such infractions are prima facie unlawful Same explanation as in Hofmeyr for why the general rules of onus do not explain the incidence of onus in this case, except that in this case the fundamental right was personal freedom Post-constitutional bodily integrity cases o These cases have not been clear as to the extent to which the imperative to protect fundamental rights will determine the incidence of the burden of proof o Lawfulness of arrest without warrant Louw v Minister of Safety and Security Court said that arrest without warrant must also be constitutionally justifiable – must ask: were there less invasive means to effect the arrest? Object of arrest is to bring someone before the court, but there are less invasive means to do so Court read a further requirement into the CPA: ‘were there less invasive means available to bring the suspect before a court’ before they may effect arrest without a warrant Minister of Safety and Security v Sekhoto Said that Louw was incorrect in reading in this additional requirement The courts that followed Louw were incorrect In the absence of finding that the specific section was unconstitutional, they were not entitled to read anything into the CPA A jurisdictional fact = an element that has to be present before a state official may act/do something Court said that CPA confers a discretion on police officer and when such a case is brought, the arrestor must prove the existence of certain jurisdictional facts o Once these facts are present, it confers a discretion on the police officer, who must decide if he is going to arrest or not Once the arrestor has proved that these facts were present, the person claiming damages (plaintiff) will have to prove that he exercised his discretion irrationally Court said that this was justifiable in light of the fact that a person alleging an infringement in terms of the bill of rights must also prove it This was in light of practice, policy and fairness considerations, and it would be unreasonable/impractical to expect the defendant to prove/plead all possible grounds of justification for all grounds of unreasonableness 25 o In this case, the discretion was found to have been exercised rationally Presumption of negligence in veld, forest or mountain fires Prinsloo v Van der Linde 1997 (CC) Facts: This case was heard under the Interim Constitution A fire spread from the applicant's land onto the first respondent's farmlands and caused damage First respondent instituted action for damages It was common cause that the fire occurred on land situated outside a fire control area The High Court referred the matter to the CC S 84 of the Forest Act deals with responsibility for fires on land outside fire control areas and provided that 'when in any action by virtue of the provisions of this Act or the common law the question of negligence in respect of a veld, forest or mountain fire which occurred on land outside a fire control area arises, negligence is presumed until the contrary is proved' Legal question: whether this presumption in s 84 is in conflict with either the right to be presumed innocent under s 25(3)(c) of the Constitution or with the right to equality before the law and not to be unfairly discriminated against under s 8(1) and (2) of the Constitution Presumption of innocence under s 25(3)(c) Applicant argued that ‘action’ in s 84 includes both criminal and civil proceedings Remember, s 25(3)(c) only applies to criminal proceedings – applicant needs to argue that s 84 applies to criminal and civil proceedings in order to have the section declared unconstitutional Court did not accept this argument – presumption of innocence not applicable, because s 84 does not deal with guilt/innocence, but rather with civil liability Even if this was not the case, if a provision can be interpreted in more than one way, court will interpret in such a way as to save it from unconstitutionality – therefore it will interpret s 84 to exclude criminal proceedings Furthermore, even if a court finds a section to be unconstitutional, it will only declare it invalid to the extent of its unconstitutionality – which would mean that the section would only be declared invalid to the extent that it applies to criminal proceedings A presumption of negligence in civil proceedings is constitutionally acceptable; a presumption of guilt in criminal proceedings would violate the presumption of innocence in s 25(3)(c) of the Constitution The equality issues: s 8(1) and (2) Applicant argued that s 84 differentiates between defendants in veld fire cases and those in other delictual matters, because there is a heavier burden on defendants in veld fire cases, and this differentiation has no rational basis Differentiation is acceptable, so long as there is a rational relationship between the differentiation and a legitimate governmental purpose Court held that the state has a legitimate interest in protecting the environment and preventing these types of incidents – rational relationship between state’s conduct and the purpose The differentiation does not impair the dignity of the defendant, therefore s 8(2) does not apply either – no unfair discrimination No breach of s 8(1) or (2) established Court held that s 84 is not inconsistent with the Constitution; referred matter back to HC Duty to begin: - Duty of the party who bears the burden of proof to lead evidence first (this is usually the plaintiff) - HCR 39: o (5)(9) – the party that bears the BOP has the right to adduce evidence first o (11) – permits parties to apply to begin o (13) – duty to begin in relation to different issues 26 o - The “onus to adduce evidence” as used in rules 39(11) and (13) is no more than a duty to adduce evidence and does not necessarily coincide with the burden of proof No bearing upon the evaluation of evidence; merely a procedural duty that enables the trial to be conducted effectively MCR 29: o The party that bears the BOP has the right to adduce evidence first NOTE: language for both provisions and the difference between BOP and the duty to begin Duty to begin is a procedural rule and has no impact on how the court evaluates the evidence whereas the BOP does, it effects how the court evaluates the evidence if the burden doesn’t prove, then the case could be lost STANDARD OF PROOF Civil case: balance of probabilities Met when the case of the party who bears the burden of proof carries a reasonable degree of probability What if there are equal probabilities? Insufficient If they are equal then it means that the standard of proof required has not been discharged Degrees of probability been rejected PRIMA FACIE CASE - Refers to instances where there is evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff o Evidence in relation to each essential element of a claim - Calls for an explanation from the defendant - Prima facie case requires explanation from the other party o Where no such evidence is given, the prima facie case may become conclusive o This is especially the case in civil cases where the plaintiff has a lower burden of proof o Not a hard and fast rule; depends on the surrounding circumstances and facts of the case ABSOLUTION FROM THE INSTANCE - Insufficient evidence to make a finding against a defendant – defendant is absolved - If plaintiff has not discharged the BOP – court can grant absolution form the instance - This can be done at the end of the plaintiff’s case or after both parties have closed their case o Close of the entire case, where evidence as a whole is evaluated Both parties have had the opportunity to present whatever evidence they consider relevant Court has evaluated the evidence as a whole Here, the burden of proof has not been discharged by the plaintiff His claim was not proven Usually means that there was a lack of a prima facie case, or they failed to substantiate a prima facie case Can the plaintiff bring another case on the same cause of action after an order of absolution from the instance? E.g. A claims B owes her money but fails to prove the existence of a loan Loan agreement was contained on a serviette 5 years later when she moves, she finds the serviette and a video recording of them entering into the loan agreement In general, she can go back and institute the claim again, but in this case the claim has prescribed o Can also be granted at the end of the plaintiff’s case Plaintiff has stated his case but there is no or insufficient evidence to support the claim Court believes that there is no prospect of the case succeeding Case would come to a close Then the defendant is spared cost, time and inconvenience Test at this stage is “whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff” 27 - - - - Absolution at the end of the plaintiff’s case o No evidence for court to find for the plaintiff o No prospect of success o Test: is there evidence, upon which a court applying its mind reasonably to such evidence, could or might find for the plaintiff Absolution at the end of the defendant’s case o P has not proved case against D o Defendant absolved from the instance o P can later reinstitute claim o Test: is there evidence upon which a court applying its mind reasonable to such evidence ought to find for the plaintiff The test for absolution from the instance is applied differently where a plaintiff has sued two defendants in the alternative o In Mazibuko v Santam Insurance the court held that in these circumstances, “if at the end of the plaintiff’s case there is evidence upon which a court, applying its mind reasonably, could hold that it had been established that either one of the defendants or both of them were legally liable, the court should not grant the application for absolution from the instance. Case should be decided on the evidence which all the parties might choose to place before the court, provided the plaintiff has laid the necessary foundation of showing prima facie that one or the other or both of the defendants are legally liable” In Supreme Service Station v Fox and Goodridge, the court held there was nothing inconsistent in a court refusing absolution at the close of the plaintiff’s case but granting it when the defendant then closes her case without leading any further evidence o Because at the close of the plaintiff’s case, the test is ‘what might a reasonable court do’ o Test applied at the close of the defendant’s case is ‘what ought a reasonable court do’ 28 CIRCUMSTANTIAL EVIDENCE Not much in textbook – but says in class notes she usually tests and possible theory question! Circumstantial evidence: Indirect evidence Inferential reasoning used to determine probative value - Rules of logic must be followed Standard to apply: o There are two rules of logic in reasoning by inference in a criminal case set out in R v Blom - Criminal cases: o R v Blom (a) The inference to be drawn is consistent with all the other proven facts (b) The facts proved exclude all other reasonable inferences, except the one to be drawn (i.e. it is the only reasonable inference) o These rules do not apply wrt application for discharge ito S174 of CPA - Civil cases: o Govan v Skidmore (a) The inference to be drawn is consistent with all other facts (b) It need not be the only reasonable inference, it is sufficient if it is the most probable inference Cumulative effect: the evidence must be considered as a whole Presumptions of fact: - “Merely frequently recurring examples of circumstantial evidence” e.g. o Doctrine of recent possession o Presumption of continuance - More accurate to call then “inferences of fact” - Can only be drawn if it is appropriate to do so - Generally unhelpful Courts generally approach the evidence of a single witness with caution Example question from class: Zulu Zungu, a 39-year-old husband of 15 years and a father of two children, was a partner in a construction business building high-quality, affordable housing for indigent families the Stellenbosch township of Kayamandi. On Monday morning 17 July 2019, he entered the Lama section of the township with a team of workers to lay the foundation for a house. At 08h00 he was attacked at the wheel of his Ford Transit by a group of four young men. One of them approached, pointed a firearm at him, pulled the trigger and fled. A second, armed with a 30 cm iron bar, demanded a cell phone before also fleeing. The bullet entered Zulu’s right shoulder. It lacerated his subclavian arteries and passed through his trachea and left lung. He died shortly afterwards at the scene of the attack. His attackers had by then escaped with his van and cell phone. Five months later 4 accused were arrested and charged with murder and armed robbery. The first accused was further charged with unlawful possession of a firearm and ammunition. A single witness, Irene Smit, testified that on the morning of 17 July 2019, while selling vetkoeks on the side of the road, she saw four men she could not identify run towards the building cite and that one of them was carrying an iron bar. Discuss the admissibility of Smit’s evidence. 29 SECTION 2: THE ADMISSABILITY OF RELEVANT EVIDENCE STUDY UNIT 2.1: RELEVANCE AND ADMISSIBILITY Prescribed: R v Trupedo, S v Shabalala, R v Kumalo and Nkosi, S v Nel, R v Davis, Holtzhauzen v Roodt & Ch.5 Textbook Introduction For evidence to be admissible, it must be relevant S210 of the CPA: - No evidence as to any fact, matter or thing shall be admissible if irrelevant or immaterial and if it cannot conduct or prove or disprove any point or fact at issue in criminal proceedings Section 2 of the CPEA contains a similar provision These sections serve as statutory confirmation of our common law and state the rule in its negative form: irrelevant evidence is inadmissible o Courts are inclined to state the rule in its positive form: “all facts relevant to the issue in legal proceedings may be proved” R v Trupedo Determining the relevance and admissibility of evidence is an interlocutory matter therefore may be reassessed if new facts arise However, relevance is not the only test for admissibility - Evidence, even if highly relevant and even if it happens to be the only available evidence, must be excluded if it is privileged - Relevant evidence obtained in breach of constitutional rights may also be excluded - The law of evidence does not allow untrammeled access to all relevant evidence Rationale for the exclusion of irrelevant evidence Murphy: purpose of evidence is to establish the probability of the facts upon which the success of a party’s cases depends in law - It is therefore important that evidence must be confined to the proof of facts which are required for that purpose - The proof unrelated facts will not assist the court Helps court only focus on facts upon which the success of a party depends in law Avoid confusion, prejudice to the other party, unnecessarily prolonging the matter, wasting money Avoid having the party against whom the irrelevant evidence is adduced have to defend themselves against irrelevant evidence time and cost considerations; undesirability of asking the court to decide on irrelevant matters; limits of the human mind; risk of clouding the issues; difficult for a party to defend themselves against irrelevant information 30 Meaning and determination of relevance Relevance is a matter of degree and is certainly easier to identify in practice than to describe Classical formulation as provided by Stephen: - ‘Relevant’ means that any two facts to which the relevance is applied are so related to each other Rule 401, Federal Rules of Evidence of the USA: - Relevant evidence = evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence DPP v Kilbourne - “evidence is relevant if it is logically probative or disapprobative of some matter which requires proof…it is sufficient to say that relevant evidence, i.e. logically probative or disapprobative evidence, is evidence which, makes the matter which requires proof more or less probable” - van wyk: “evidence is relevant when it possesses the ability to, whether alone or with other evidential material, make the existence of a fact in issue, either directly or indirectly, more or less probable” Is logical relevance sufficient? - It would be wrong to accept or assume that evidence is admissible simply because of its logical relevance - Logical relevance = sine qua non of admissibility; cannot guarantee that the evidence will be admitted - Factors and considerations which may temper relevance: o The issues o Reasonable or proper inference o Avoiding a multiplicity of collateral issues o Risk of manufactured evidence o Prejudicial effect o The doctrine of precedent o The principle of completeness o Constitutional imperatives and the position of the accused Checks on the admissibility of logically relevant evidence The issues (the essential POD): - Court must always have regard to the facts of the matter - S v Zuma o The question of relevance can never be divorced from the facts of a particular case before the court o i.e. the nature and extent of the factual and legal dispute must be considered in determining what evidence is relevant o “it was held that relevance finds concrete application not only in the light of the primary facta probanda but also the facta probantia which is in dispute” - Lloyd v Powell Duffryn Steam Coal Co Ltd the very first question that must be asked in deciding admissibility is “what are the issues?” - Facta probanda and facta probantia o The term ‘relevance; finds concrete application not only in the light of primary facta probanda, but also in the facta probantia o S v Mayo and Another: It is not in the interests of justice for relevant material to be excluded from court - R v Solomons: o Subject to the considerations of prejudice, a ruling on the admissibility of evidence can be reversed at a later stage in light of new factual issues that may come to light during the course of trial Reasonable or proper inference: assessing the potential weight of the evidence - Facts are relevant if from their existence inferences may properly be drawn as to the existence of a fact in dispute Rex v Mpanza - Court must assess the potential weight of the evidence - R v Trupedo 1920 o Held that no proper inference could be drawn from the behaviour of a police dog in its identification of a suspect o The evidence was rightly excluded as being irrelevant o Facts: 31 o o Accused allegedly jumped through the window of a girl’s hostel with the intention to commit a crime When the girls woke up, he escaped back through the window and ran away There were footprints on the ground beneath the window A policeman was sent for and he brought with him two police dogs who were under his charge He was shown the footprints and he placed one of the dogs onto the scent The dog went to another building where a number of people were sleeping, went first to the accused and sniffed him, then sniffed all the other occupants, then came back to the accused and barked Policeman said he had three years’ experience working with dogs; this particular dog had been with him for 18 months and his work was always reliable However, the particular dog had once before made a mistake The length and characteristics of the accused’s foot matched the footprint The girls from the hostel all identified the accused as having the same build as the man who entered their room, but they couldn’t actually identify him as the intruder Court a quo found the accused to be guilty; relied on the evidence of the policeman as to the behaviour of the dog Legal question before the appellate division: can the behaviour of a police dog be taken into account as evidence against the accused? Court referred to a previous case of R v Kotcho which decided that evidence of the action of police dogs was inadmissible, and that no presumption of guilt on the part of an accused person could be deduced from the behaviour of such dogs towards him Court looked at English law: no English authority, either in textbooks or decisions Court says this was highly significant – probably means that it is not considered proper or right to lead evidence in a court of law as to their actions In America, the courts of different states have been at odds as to the admissibility of such testimony In those states where it has been received, it has been subjected to very stringent safeguards Two rulings by SA courts which both held that evidence of this kind is inadmissible: R v Kotcho, which was approved and adopted in Adonis v Rex In Adonis v Rex, the court held that such evidence was analogous to hearsay and could not be admitted General rule: all facts relevant to the issue in legal proceedings may be proved Much of the law of evidence deals with exceptions to this general principle e.g. exclusion of testimony on grounds of hearsay Where its operation is not excluded, this is the fundamental test of admissibility A fact is relevant when inferences can be properly drawn from it as to the existence of a fact in issue There are cases in which inferences may be properly drawn from the behaviour of animals E.g. if the question is whether A entered a certain room at night, the fact that a dog belonging to A was in that room and did not bark would be a fact from which it could be inferred that A was indeed the person who entered NB the reason that the evidence will be admitted in such cases will be that the behaviour in question is instinctive and therefore it may be safely acted upon To draw inferences from the actions of a tracking dog as to the identity of a particular individual is to go much further – enters into the realm of uncertainty and conjecture We have to scientific or accurate knowledge as to why dogs of certain breeds can follow the scent of one human being, rejecting the scent of all others However, we know that they do not act merely on instinct – there is a great deal of training required before they can be relied upon The evidence relating to their behaviour is so closely analogous to hearsay as to come within the principle of the hearsay rule The reason we exclude hearsay: the original witness is not testifying, another person is Just as in this case, the dog’s handler will be testifying as to the behaviour of the dog 32 - We don’t know what the reason for the dog’s behaviour was Even if it is not regarded as hearsay, there is too much uncertainty as to the constancy of the dog’s behaviour and as to the extent of error involved to justify drawing legal inferences from it Possibility that the dog may fail to distinguish between two scents; possibility of a misunderstanding between the dog and its handler Dramatic nature of the testimony may cause juries to attach a dangerously exaggerated importance to such evidence Therefore, evidence as to the behaviour of a police dog should not be regarded as relevant; it is inadmissible Conviction and sentence set aside, because the prosecution relied heavily on the evidence relating to the behaviour of the dog for their case S v Shabalala 1986 o Nestadt JA stated that “If the weight of the evidence is so inconsequential and the relevance accordingly so problematical, there can be little point in receiving the evidence” o Almost 70 years after Trupedo o Facts: Intruder broke into a couple’s home and stabbed both of them The wife died from her injuries; husband recovered Accused went on trial – one of the pieces of evidence against him was that his shoes were found – one inside the house; the other just outside the house o Trial court found accused guilty of housebreaking, assault with intention to do grievous bodily harm and murder Sentenced to two years’ imprisonment for each of the first two convictions, and death for the conviction of murder o Accused appealed his convictions and his sentence o Appellate division considered each piece of evidence to which the trial court made reference – we are focusing on the evidence relating to the behaviour of a police dog Appellant was lined up in an identity parade The one shoe which was found outside the house, and which had not been handled except for being placed into a plastic bag by the police, was given by a policeman to a dog to sniff The dog was a thoroughbred English bloodhound called Tilly Evidence was led as to her training and her skill in tracking scents She had A and B certificates from the courses she had completed; after completing her training she had been used by the police for two years; she had never been proved wrong During the identity parade, she walked up and down the row of people, sniffing each one – when she reached the appellant, she put her paws on his shoulders and barked The procedure was repeated twice with the accused standing in different positions in the lineup – the result each time was the same o Appellant disputed that the parade had been fairly conducted o Legal question: is this type of evidence admissible? o Court a quo o Court referred to R v Trupedo, which followed R v Kotcho and R v Adonis, where it was held that this type of evidence was not admissible The ambit of the ratio in R v Trupedo has been contested – some writers say that it did not lay down a general rule that evidence of tracking by dogs is per se inadmissible – the ruling has to be viewed in the context of the facts of that particular case and the limited scientific knowledge on the subject in 1919 o Such evidence is admissible in other jurisdictions: USA, Scotland, Northern Ireland, New Zealand o Court a quo held that, provided a proper foundation had been laid, the evidence relating to the behaviour of a tracker dog is part of the evidential material which a court must have regard to when considering the inference to be drawn from the totality of the evidence led during the trial; whether it makes a valuable or an insignificant contribution to the totality of the evidence will depend on the circumstances of each case and the strength of the foundation which was laid Proper foundation includes evidence as to: 33 - The handler’s qualification and experience Nature and duration of the dog’s training Nature of tests undergone by the dog before it qualified and the results of such tests Dog’s experience Dog’s general skill and reliability e.g. had it ever been proved wrong Scenting ability of the dog’s breed General basis for the suggestion that dogs have an inborn scenting ability/a scenting ability acquired by training The conditions under which the identification was made o Court a quo held that such a foundation had been laid for the reception of the evidence – concluded that generally speaking, the scenting ability of an experienced and properly trained dog is reasonably reliable Evidence was admitted and given some weight However, the evidence of the dog’s behaviour was held to have had no decisive effect on the verdict o Appellate division: was this an unjustified departure from R v Trupedo? AD held that R v Trupedo was not merely a factual finding re the reliability of the particular dog in that case, but rather it decided in principle that the evidence of the conduct of dogs is inadmissible AD held that R v Trupedo should not be taken as the final pronouncement on the matter in all circumstances; the exclusion of such evidence is not absolute AD therefore opened the door to such evidence being admitted by courts In R v Trupedo, the main reason for the exclusion of the evidence was its extreme untrustworthiness If this element can be sufficiently reduced, the actions of the dog would become relevant and evidence thereof admissible Not possible to define what would need to be established to achieve this, but proof that the dog came from stock having special sniffing abilities, that he was of pure blood, possessed these skills himself and had been specially trained would be insufficient On the other hand, additional evidence explaining how these dogs are able to follow the scent of one human being, rejecting the scent of all others, would suffice o Court held that the approach in R v Trupedo should not be departed from on these facts o The evidence in Shabalala was not clear or persuasive enough to take it from the realm of conjecture to the status of admissibility o The criteria laid down as the foundation formulated by the judge a quo were not satisfied The dog trainer’s credentials were not proved Conditions under which the identification was made: the possibility that another person might have the same scent was not excluded No evidence was adduced to show that our understanding of canine traits and capabilities or their training has advanced beyond what we knew when R v Trupedo was decided Should have used more than one dog at the parade; given something with the appellant’s scent on it to another person in the parade; rehold the parade without the appellant in it No scientific basis for the trainer’s view that the scent-determining power of a correctly trained dog was “infallible” o AD held that R v Trupedo was binding on the court a quo, it was not distinguishable from the facts before it and the evidence of the behaviour of the dog towards the appellant was inadmissible Should not have been taken into account State failed to prove that the shoes were those of the appellant No link between him and the crimes on this basis o Court went on to consider the other evidence taken into account by the court a quo o Take away from this case: the door to admitting evidence of the behaviour of a dog isn’t shut completely, there is just a high standard of what we expect these dogs to do; rigorous scientific method needs to be followed before such evidence can be admitted In order to determine whether a proper or reasonable inference is possible, the court must make a provisional or tentative assessment of the potential weight of the evidence sought to be adduced 34 o - - There must at least be some advance indication that the evidence, if received, would be of reasonable assistance to the court in the exercise of its ultimate, fact-finding duty Zuckerman: o Where the relevance or irrelevance of evidence is the issue and potential probative weight must be assessed, the judge is not concerned with the final weight of any piece of evidence o Admissibility stage: only concerned to make a rough and ready estimate of the potential contribution that the evidence in question might make and whether it is substantial enough to justify admission o Admissibility test = therefore a composite test made of a mesh of considerations of logical probabilities and of practical utility o If there is doubt as to the relevance of evidence, judge will ask party offering such evidence how it relates to the rest of the evidence that he or she plans to adduce NB to note that the court’s initial assessment of the potential weight of the evidence is done for purposes of determining admissibility o Evidence that is admitted may ultimately at the end of the trial be re-assessed in light of all the other evidence for purposes of determining sufficiency i.e. has the required burden of proof been attained? Avoiding a proliferation or multiplicity of collateral issues - There is a desire to avoid wasting time in probative exertions more or less off the bull’s eye of litigation - In determining the relevance of evidence, court should also consider whether the admission of the evidence would lead to a protracted investigation into many collateral or side-issues which, once determined, would be of little probative value with regard to the true issues - This issue of proliferation can arise in relation to polygraph tests o Was the polygraphist competent? o Was he an expert in this fairly novel technique of determining credibility? o Were appropriate questions asked? o Did the machine function properly? o How reliable is the final result? - These issues in relation to a polygraph test may render a fairly useless result – essentially it is just someone’s opinion o There is a risk that a drawn-out and time-consuming investigation of collateral issues would not justify the final result o In any event, it is the duty of the court to make findings of credibility wherever necessary o These tests are used in labour cases to a certain extent - Trupedo and Shabalala could also fall under this heading - S v Nel 1990 o Trial court refused to allow an accused to lead psychiatric evidence o Facts: Appellant was charged with unlawfully dealing in dependence-producing drugs State case relied on the evidence of two witnesses – a police trap (who pretended to be interested in buying drugs from her) and his police controller Counsel for the defence applied to call a psychiatrist to give evidence regarding the psychological state of one of the witnesses called to testify on the appellant’s behalf Magistrate refused the application o Appellant argued on appeal that the magistrate erred in refusing to grant the application o Legal question: should the accused have been permitted to call a psychiatrist to explain to the trial court why the evidence of an apparently normal defence witness should be largely disregarded because of psychological characteristics which fell short of a mental defect or certifiable insanity Accused suffers at time committed right – balance of probabilties o The psychiatrist was called to say that the magistrate should be wary of accepting the evidence given by the witness because the witness was ‘mildly to moderately retarded’ (rather say something like ‘mentally affected’) and likely to ‘clamp up’ when subjected to the strain of testifying in court and unlikely to convey correctly to the court what she had seen and heard o Granting the application would be subversive of the principle that the court and the court alone must evaluate the reliability of the evidence given before it by a witness and that it must do so having regard to his/her behaviour in the witness box 35 o Two questions: is evidence of this kind ever admissible irrespective of who seeks to lead it? Secondly, is the appellant entitled to adduce such evidence in the circumstances of this case? o o - Marais J agreed with trial court Purpose of this proposed evidence was to show that a defence witness, (who in her testimony had contradicted aspects of the accused’s testimony) was ‘mildly to moderately retarded’ and therefore likely to ‘clamp up’ under the strain of testifying in court o Marais J followed the R v Turner approach: Courts are well aware of the fact that differences in intelligence and ability to recall to exist Ad hoc assessments of such matters are an integral part of the daily round of hearing witnesses testify in court Deficiencies of such abilities are not likely to remain hidden if the questioning of the witness is thorough as it should If the court opens the door to evidence which challenges the intellectual ability of a witness – it is difficult to say when this door will be shut This would lead to the opening of ‘an evidential Pandora’s box’ o The English law as it existed on 30 May 1961 must be applied o The nature of the evidence which the appellant wants to lead by calling a psychiatrist was very similar to that in Turner’s case o Mild psychological issues like differences in intelligence, ability to recall, ability to articulate etc are commonplace and courts are aware that they exist; deficiencies in any of these abilities are not likely to remain hidden if the witness is thoroughly questioned, which they should be o These are intellectual and psychological disabilities of a relatively normal kind o Once the door is opened to this kind of evidence, when will it be shut? Must evidence from a school teacher or university professor be received that shows that a witness is stupid or clever? Or that they have a good or bad memory? This is an evidential Pandora’s box o Entirely different to the question of whether psychiatric evidence may be led to show a witness is insane and therefore incompetent to testify o Completely different to cases of physical affliction e.g. witness is short-sighted and could not have possibly identified someone from 100m away – this type of evidence should obviously be admissible o Cost of the additional and inessential assistance of a psychiatrist in terms of prolonging the trial, increasing costs etc exceeds by far the marginal benefit which could be gained by admitting evidence of relatively normal psychological and intellectual problems o Psychiatric evidence of the kind which appellant sought to place before the court was not admissible and the particular facts of the case did not warrant its reception by way of an exception to the general rule o Magistrate was therefore correct in refusing to allow it to be led Legal relevance o Do the practical disadvantages of receiving such logically relevant evidence outweigh its probative value? It is important to note that this does not apply to cases of physical affliction: For example, a court cannot tell by merely looking at a witness that he is so shortsighted that he could not possibly have correctly identified a person who was 100m away at the time Evidence to establish that he was shortsighted would obviously be admissible It is different, however, with intellectual and psychological disabilities Some may say that expert evidence in relation to such would be beneficial for the trial Court says that this may be true, but must weigh up the costs of this additional, inessential evidence in terms of how they prolong trial and the lack of affordability for many in both criminal and civil trials Cost is likely to exceed the marginal benefit which would be gained if such evidence were to be deemed admissible The reasoning in S v Nel was well summarized by Zeffertt: “The question is not solely one of logical relevance, but one of legal relevance. As Marais J observed, the question is not confined to whether the opinion is ‘relevant’ in 36 the sense that it could lead, possibly, to a more reliable assessment by the court of a witness’s credibility. If the practical disadvantages of receiving logically relevant evidence do not warrant its reception it will be legally irrelevant and inadmissible, but if its probative value outweighs those disadvantages it will be of material assistance to the court, legally relevant, and admissible” The prejudicial effect: - Evidence which is logically probative or disapprobative can be excluded because of its prejudicial effect on the party concerned - ‘Prejudice’ o Does not only mean that evidence will be excluded simply because the party against whom the evidence stands to be adduced will be incriminated or implicated o Rather, it means that the incrimination or implication will take place in circumstances where the party concerned may be procedurally disadvantaged or otherwise exposed to a lengthy trial involving issues which, even though logically relevant, are legally too remote to assist the court in its ultimate decision on the merits o Refers to procedural disadvantages - Evidence is relevant if its probative value outweighs the prejudicial effect - In the law of evidence and criminal law, proof of motive is generally only relevant to prove the identity or intention of the accused o E.g. you might have a jilted ex-husband who found out his wife was cheating on him; state alleges he murdered his wife o Proof of motive might be relevant to prove intention or that he is in fact the guilty party o Results in further issues o Often, motive is quite irrelevant - CPA allows for instances where you might prove motive - Motive must be personal, not general - Motive and R v Kumalo & Nkosi 1918 o Two people accused of murdering a child o Child’s throat was cut and front part of the body cut open o Child’s heart was taken out o Left ventricle of the heart containing fatty portion of the heart was removed o Medical examiner said this was the work of a skilled hand o Prosecution called an expert witness (Hofmann) to testify that at that time, there was a practice amongst Zulu witchdoctors where they mutilated young persons and used their body parts, particularly the fat, against bad luck o Innes CJ: The ordinary man does not perpetrate a grave criminal offence without a motive Although it is neither essential nor always possible to ascertain what the motive was, it is often a matter of considerable importance Absence of motive may act in favour of the accused It is, however, seldom that direct evidence pointing to the motive of the accused can be produced in a majority of cases, the probable existence or non-existence of a motive must be deduced from external circumstances Example of personal motive: if a husband were charged with the murder of his wife: Evidence of adultery may be admissible as showing a possible motive for the crime Was the marriage happy? These are not really collateral issues, but rather issues which, once determined, an assist the court in making a finding in relation to the facta proabanda Prejudicial effect of this evidence is outweighed by its potential probative value Court in this case held that evidence of a motive for a crime is admissible against an individual even though its tendency is to show that all members of a certain category, would have had an inducement to commit the crime in question Two accused were charged with and convicted of the murder or a child, body of this child was found in the veld 37 - - - Child’s throat was cut, front part of body was cut open from throat down to the fork of the legs Heart was taken out, and the left ventricle that contained the fatty portion had been removed Medical opinion: cutting was done by a skilled hand In order to furnish proof for motive for the crime, prosecution called an expert witness: Testified that this was, at this stage, the practice amongst Zulu tribes and especially on the part of Zulu witch-doctors to kill and mutilate young persons and sue portions of the body, particularly fat, as a charm against ill-luck Court found that K&M were not witch-doctors rather “native doctors”, and therefore this evidence could not be admitted against the two accused However, the court held that the expert evidence on the custom of Zulu people was generally relevant and therefore admissible: Members of Zulu tribes believed firmly in the potency of human fat not only as a charm against misfortune, but also as ensuring good luck in the future Generally followed the advice of a with-doctor, also used the charm themselves In the opinion of the court, the existence for motive for such a crime might be reasonably deduced from the general custom of belief described if the accused were members of the tribe referred to This would mean that human fat would possess a definite value for them, and this fact may be considered as pointing to the existence of a motive for the crime Customs of tribes upon vital matters are universal and binding to a very high degree, and there is nothing unreasonable or unfair in inferring from such the existence of a motive for crime Could only be proven in court that K was Zulu, could not prove this about N and therefore the evidence was only admissible in terms of K o Solomon JA and Maasdorp JA: Said that this evidence was too tenuous to have warranted admission There was no link between K and the practice referred to by the expert, other than the fact that K was Zulu There was no evidence that K had experienced ill-luck or was expecting imminent ill-luck Therefore, no personal motive cannot be considered evidence of personal motive but rather circumstantial evidence Seems that Innes CJ admitted irrelevant generalisations o This type of reasoning is unacceptable and highly prejudicial o The evidence admitted was not evidence of a personal motive, but simply circumstantial evidence which was irrelevant because of its extremely limited potential probative value and its likely prejudice to the accused If you had to apply the test of circumstantial evidence, it would not pass o No evidence that this practice did not also exist in other tribes o Case subjected to lots of criticism o If you want to rely on motive, try to at least show that it is some kind of personal motive There should be a personal connection between the impugned circumstantial evidence and the party concerned R v Masebe: o Accused was charged with murder o Deceased had been strangled, and identity was in issue o Maisels JA held that: “The evidence is plainly admissible to show desire on the part of the appellant to harm the deceased and is clearly relevant to the main issue in this case, namely, whether the appellant was the person responsible for the murder of the deceased” R v Christiaans: o The fact that the accused had the means of committing the offence with which she was charged, was found admissible R v Dhlamini o This is a case where the potential probative value of the evidence clearly outweighed the possible prejudice to the accused 38 o o o o o Prosecution alleged that the accused had stabbed the deceased to death in a cul-de-sac at approximately 22:00, or shortly thereafter Defence of the accused = an alibi Alleged that at the time and date of the murder, he was at a dance approximately 16km from the cul-de-sac where the deceased was killed A witness testified that at around 21:50 that evening, she was stabbed by the accused around 140m from the cul-de-sac Accused objected to this testimony on the basis that the admission of N’s evidence would have been highly prejudicial to the accused in that it related to criminal conduct which did not form the subject of the charge against the accused (because the accused was only on trial for the murder – this was the sole charge) Court admitted the evidence of the witness Said that the evidence of the witness is vitally relevant to the question of the accused’s alibi Her evidence is admissible in order to rebut the accused’s alibi, not to prove prior misconduct If the witness’ evidence was simply to prove prior misconduct, it would have been inadmissible for lack of relevance Serial killers: one instance in which you could admit similar fact evidence The doctrine of precedent - Can determine the relevance (i.e. the admissibility of evidence), but not the weight thereof - Cautious approach is necessary before boldly invoking judicial precedent to decide on admissibility where relevance is the issue - Facts differ from case to case, precedent can therefore at most provide useful guidelines - E.g. Trupedo and Shalabala set a precedent that we exclude police dog evidence o Trupedo seemed to place a blanket prohibition on any kind of police dog evidence o Shabalala seemed to leave the door open to this kind of evidence if you adduce proper facts to show that this evidence is not just conjecture In Shabalala, the court held that the judgement in Trupedo did not rest solely on a factual finding concerning the reliability or otherwise of the particular dog, but was essentially rooted in the principle that evidence of the conduct of dogs in identifying an accused is inadmissible However, if the untrustworthiness of such evidence could be sufficiently reduced, then the actions of the dog would become relevant and therefore admissible The court said that in that specific instance, the facts were so indistinguishable from Trupedo, that the court could not deviate from precedent The risk of manufactured evidence - Previous consistent statements of a witness are, as a rule, excluded (has no probative value) - SCA in S v Scott-Crossley said that the previous consistent statement of the witness has no probative value and is therefore irrelevant - Exception o Where the risk of manufactured evidence is outweighed by the probative value of the previous inconsistent statements o What did you say when you were arrested; is it consistent with what you are saying now? o Where you have a charge of sexual assault; if you told someone on a prior occasion that it happened, that might be admissible E.g. Holtzhauzen v Roodt o It can be argued that where these exceptions apply, the risk of manufactured evidence is outweighed by the probative value of the previous consistent statement, thus rendering the otherwise irrelevant statement relevant and admissible - Holtzhauzen v Roodt 1997 (W) [prescribed]: o Facts: This is a defamation case Holtzhauzen sued Roodt for defamation Roodt had made reports of being raped by H The allegation was made some time after the alleged rape took place Main issue before the court was whether Roodt was indeed raped by H or not Roodt wanted to call two expert witnesses; H objected 39 o o o o The legal question surrounded the admissibility of the expert evidence of the two witnesses First the court made a few general remarks about expert opinion evidence: Witnesses are generally not allowed to draw inferences from the facts; they are limited to an account of the facts Exception: where the court cannot draw properly reasoned inferences from the facts because it lacks special knowledge and skill In such cases, the evidence of expert witnesses may be received because they are better qualified to draw inferences than the judge because of their special knowledge and skill There are a number of principles applicable to the admissibility of expert opinion evidence: Witness must be called to give evidence on matters calling for specialised skill or knowledge Should not elevate the expertise of psychologist and psychiatrist witnesses to such heights that we lose sight of the court’s own capabilities and responsibilities – drawing inferences as to the state of a normal man’s mind from the objective facts is something the court does on a daily basis Witness must be a qualified expert Facts upon which the expert opinion is based must be proved by admissible evidence Guidance offered by the expert must be sufficiently relevant to the matter in issue Opinion evidence must not usurp the function of the court; witness is not permitted to give opinion on the legal or general merits of the case First witness = Wilkinson Clinical psychologist Roodt told him several times under hypnotherapy that she was raped by H His opinion was that she was telling the truth; he believed that she was raped H had two objections to W’s evidence: it usurped the function of the court, and secondly, it was based on that which he heard from Roodt i.e. it was evidence of previous consistent statements made by Roodt Usurped the function of the court: attempt to displace the court’s value judgement with that of the witness Court is required to make certain determinations on its own on an assessment and evaluation of all the evidence and not just on the version as presented by Roodt Litigants are entitled to have their disputes settled by judges, not by witnesses W said that his test was infallible and that Roodt was telling the truth – this usurps the function of the court, because there would then be no point in leading witnesses in person through their evidence and cross-examining them; we would simply hypnotise them to get the answers Previous consistent statements: There is a rule against self-corroboration The evidence of Roodt (that she was raped) cannot be confirmed simply by calling someone else to prove that she made the same statement on a previous occasion Such evidence is irrelevant; it adds nothing to what Roodt already told the court There are cases where such evidence would be allowed, if it is relevant for some other reason than that the statement merely preceded the statement of the witness Court held W’s evidence to be irrelevant and inadmissible Second witness = Breslin Psychologist and social worker employed by People Opposing Women Abuse (POWA) She testified to the fact that victims of rape often do not immediately report the rape; this is an aspect of PTSD Objection to her evidence by H was that it was of a general nature and would amount to conjecture; she did not actually personally consult with Roodt It was argued that the relevance of her evidence was questionable Court held that opinion evidence is accepted if relevant – will be relevant if it can assist the court e.g. if the witness is better qualified to form an opinion than the court 40 o Court accepted that B’s evidence was of a general nature, but held that a court should accept such evidence when it lacks special knowledge and skill to draw properly reasoned inferences from the facts An expert is often better qualified to assist the court with regard to certain inferences Rape is a topic beyond the personal knowledge or experience of most judicial officers It would in fact be irresponsible for a judge to attempt to draw inferences from the facts in a case where he lacks special knowledge and skill without receiving guidance from an expert E.g. on the facts of this case, normally, a judge would infer that the fact that someone did not immediately report a crime justified the inference that the crime did not happen – different in a rape case, because experts tell us that rape survivors often take a long time to report rape cases B’s evidence was held to be relevant and admissible; however, the court would still assess the probative value of the evidence in light of all the evidence before the court Know what the case was about – two expert witnesses; what was said about the evidence The principle of completeness - Courts should not exclude harmless, irrelevant evidence - A witness should be given a chance to tell a coherent story this requires some background evidence which may be irrelevant Constitutional imperative (could be a test question) - It has been argued that the defence should have more liberal rights that the prosecution to adduce evidence which may not be of especially high probative value - This argument has some weight in a constitutionalized system such as SA o This is because the accused has a constitutional right to a fair trial, and this includes the right to adduce and challenge evidence - S210 Criminal Procedure Act: irrelevant evidence is inadmissible o This is a constitutionally permissible limitation on the right to adduce and challenge evidence in terms of section 36 of the Constitution therefore no breach of the right to a fair trial o There cannot be an unqualified right to adduce irrelevant evidence or to challenge admissible evidence with irrelevant evidence - Argument against this: o The rule that irrelevant evidence is inadmissible (s 210 CPA) is, in terms of s 36 of the Constitution, a constitutionally permissible limitation of the right to adduce and challenge evidence o There cannot be an unqualified right to adduce irrelevant evidence or to ‘challenge’ admissible evidence with irrelevant evidence – such a right would make no sense o Some argue that there are many rights already in favour of the accused - However, there is room for an argument that where the extremely limited probative value of the evidence would normally have justified a finding of inadmissibility on account of irrelevance, the court should, in order to protect an accused’s constitutional right to a fair trial, lean in favour of admissibility - Supreme Court of the USA in Rock v Arkansas = case in point [know what this case said] o Accused was charged with manslaughter for the death of her husband o She could not recall all the details of the event o She agreed to undergo pre-trial hypnosis to refresh her memory (at the suggestion of her lawyer) o Her memory as it stood before the hypnosis was recorded o She was then hypnotised by a neuropsychologist specially trained in hypnosis o After the hypnosis session, she was able to recall the details of the events that led to her husband’s death o Trial court ruled that she could only testify to matters she remembered prior to hypnosis and she was convicted o Supreme Court of Arkansas confirmed the conviction Held that accused had the fundamental right to testify in her own defence, but such right was not limitless and could be validly restricted by standard rules of evidence Dangers of admitting evidence based on what emerged as a result of the hypnosis outweighed whatever probative value it may have Concluded that what was excluded would not have been of much assistance to the accused anyway 41 o - Supreme Court of USA rejected the approach of the Supreme Court of Arkansas by a 5 to 4 majority Majority held that court a quo failed to perform the constitutional analysis that is necessary when an accused’s constitutional right to testify is at stake Serious risks attached to admission of hypnotically refreshed memory (it is still tenuous evidence), but constitutional due process demanded admission and that a blanket rule of exclusion of hypnotically enhanced testimony was arbitrary Could not be accepted that such testimony is always so untrustworthy that an accused should be prohibited from presenting it o This decision does not extend to the situation of prosecution witnesses Makes one think about fair trial rights, public policy, etc Proposals by SA Law Reform Commission Proposal to repeal s 210 CPA as well as s 2 of CPEA The SALRC wants to codify relevance more and give more detailed legislative guidelines for what relevance is, because there is no certain definition o Our uncodified approach is problematic o However, they have noted that the lack of a set definition does not seem to have given rise to problems in practice Lots of case law dealing with relevance that needs to be reconciled when dealing with a new set of facts On the other hand, statutory intervention might hamper judicial evaluation It has been argued that the wisdom of codifying principles governing relevance is highly debatable – the question whether evidence is relevant does not depend on abstract legal theory, but on the individual circumstances of each case Prevention of Organised Crime Act (POCA) – not in textbook On 21 January 1999 POCA came into operation and substantially altered the law of evidence when it comes to organised crime S 2(2): “a court may hear evidence regarding hearsay, similar fact evidence or previous convictions notwithstanding that such evidence would otherwise be admissible, provided that it does not render the trial unfair” o This section relates to offences in chapter 2, s 2(1) of POCA: these are offences relating to racketeering Function of s 2(2): o In order to be held liable for racketeering, state has to prove you committed two predicate crimes, which can be any of a wide range of offences E.g. murder; ran a brothel; used a prostitute – almost anything will suffice Proof that you committed a pattern of racketeering activity This is referring to previous convictions – normally in our law of evidence, this is irrelevant and inadmissible, but not with organised crime s 2(2) refers to chapter 2 of POCA Chapter 4 of POCA, which deals with gang activity, does not refer to the fact that a court may allow this evidence despite the fact that it is generally inadmissible, but it seems to be implied that s 2(2) is also applicable to chapter 4 Grave legislative oversight that there is no express provision to this effect Cases that deal with chapter 4 use s 2(2) in the same was as cases that deal with chapter 2 Savoi v NDPP 2014 (CC) [prescribed – only know what was said in class; very long case] o Constitutionality of s 2(2) challenged in the Constitutional Court o Appellant submitted that there was no guideline to know when these types of evidence would render the trial unfair o S 2(2) says it would be inadmissible when it renders the trial unfair, but gives no indication as to when this would be o Cannot guard against the inherent prejudices of this type of evidence o CC held that s 2(2) is similar to s 35(5) of the Constitution in that s 35(5) also does not provide exact guidelines o S 2(2) is not prejudicial merely because it does not provide guidelines 42 o o Whether the evidence would render the trial unfair has to be determined by the trial court We have a lot of case law dealing with trial fairness which can be relied on 43 STUDY UNIT 2.2: CHARACTER EVIDENCE Prescribed: R v Davis, S v Pietersen, S v Zuma, S v Jones Article: J Omar “South Africa's rape shield: Does section 227 of the Criminal Procedure Act affect an accused's fair trial rights?” 29(1) (2016) SACJ 1- 23 Ch.6 Textbook Introduction: This chapter deals with what evidence, pertaining to character and disposition, may be adduced Different forms of character evidence: - General reputation; and - A person’s disposition to think or act in a particular way E.g. serial killer has a particular disposition to target specific victims and kill them in a certain way English common law preferred evidence of general reputation as a means of establishing character Modern law of evidence does not reflect this preference Character evidence in civil matters: In civil matters: - Generally irrelevant – may be considered in quantifying damages - May be relevant to credibility o A defamation action defendant might show plaintiff’s bad reputation - Evidence of character may also be admitted in terms of the similar fact rule Character evidence in criminal matters: The character of the accused: Section 227(1) of the CPA: (1) Evidence as to the character of the accused…shall…be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May 1961 I.e. in terms of s227(1), the admissibility of character evidence of the accused is determined by the rules of English law as were in force on the 30 May 1961 o Must be read together with other relevant statutory provisions e.g. sections in the CPA and s 2(2) of POCA These common law rules need to be read together with the relevant statutory provisions General rules: The accused can adduce evidence of his good character: why? - R v Rowton: o Court held that such evidence is admissible because it renders it less probable tht what the prosecution has averred is true o It is strictly relevant to the issue Prosecution is prohibited from adducing evidence of the accused’s bad character: why? - Excluded in English law because it might have a disproportionately prejudicial effect upon the jury o This is a rule that originated from the jury system – may have a disproportionately prejudicial effect on the jury - Generally considered to be irrelevant o This is the reason for exclusion that presumably forms the basis for the rule in SA law o Irrelevance for general reputation = fairly self-evident o Irrelevance of disposition evidence = not as clear Past behaviour is a good indicator of likely future conduct Therefore, it can be said that disposition evidence may well be logically relevant in establishing the likelihood of a particular behaviour occurring Therefore, the irrelevance of disposition evidence may lie in the prejudice of generalized application of claims of social psychology as well as a residual skepticism as to the accuracy of past behaviour as a predictor for future behaviour o Some authors question whether this rule is still relevant or applicable because we no longer have a jury system; judicial officer should be able to work out what is relevant or not 44 - Irrelevance of general reputation is fairly self-evident, but disposition evidence may be relevant in certain instances It is frequently argued that past behaviour is a good indicator of likely future conduct, so disposition evidence may be relevant to establish the likelihood of a particular behaviour occurring Accused may adduce evidence of his good character o Accused could testify himself o Can call witnesses to attest to his good character o Can cross-examine prosecution’s witnesses o Once the accused adduces evidence of his good character, the state can adduce evidence of your bad character o So we say that character is indivisible: cannot simply paint a picture of a good person; you are made up of elements of your good and bad character Losing the shield against bad character evidence: Common law - To establish her good character, the accused may: o Give such evidence herself o Call witnesses o Cross-examine prosecution witnesses - In response, the prosecution may: o Adduce evidence of bad character o Cross-examine character witnesses o Cross-examine the accused - If the accused attacks the character of prosecution witness but does not adduce his own good character, prosecution prohibited to adduce bad character evidence, but may cross-examine the accused in terms of s197(a) Section 197 CPA - An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the office with which he is charged, or that he is of bad character, unless: (a) He or his legal representative asks any question of any witness with a view to establishing his own good character, or he he himself gives evidence of his own good character, or the nature or conduct of the defence is such as to involve imputation of the character of the complainant or any other witness for the prosecution; (b) he gives evidence against any other person charged with the same offence or an offence in respect of the same facts; (c) the proceedings against him are such as are described in section 240 or 241 and the notice under those sections has been given to him; or (d) the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged. - Previous convictions or bad character prohibited unless: (the accused loses protection/shield if) o He gives evidence of his own good character, either by giving evidence himself or by leading or crossexamining witnesses o He attacks the character of the complainant or any other prosecution witness; o He gives evidence against a co-accused; o He is facing a charge of having received stolen property; o His previous conviction relates directly to proof of the present charge Class example: John and David are charged with the theft of a motor vehicle brought to their garage for repairs by Michael. They both plead not guilty. John testifies in his own defence. He claims that David had suggested to him that he steal the car but that he had told David that he would not participate in such an immoral act. John has two previous convictions for shoplifting. Counsel for the prosecution and for David cross-examine John on these previous convictions. If you were the presiding officer what ruling would you give in response to an objection to such cross-examination? 45 o S 197(b): where the accused testifies against someone charged with the same crime or at least on the basis of the same facts Where the trials are separate, and the co-accused has been convicted and sentenced before the accused’s trial, he will no longer be considered a co-accused or a person charged with the same crime/same facts Accused can make statements as to his character without losing his shield Testifying against someone = giving evidence that supports the prosecution’s case against him/her or undermines his/her defence Merely denying that you took part in a joint venture does not amount to testifying against a co-accused, unless it implies that the co-accused did participate in it E.g. two people charged with possession of dagga: Mr B is on the witness stand and says he had nothing to do with it, furthermore that Mr A is a habitual dagga smoker, and Mr B is a good Christian and doesn’t get involved with these types of activities Adducing evidence of good character and strengthening state’s case against coaccused Two possible grounds on which he could lose his shield Restriction on grounds of irrelevancy: Once you have lost your shield, can you now be questioned about anything and everything? When you lose your shield, you can be asked about your previous criminal history, bad character, etc Is it now a free-for-all in terms of what the opposing party can ask you? Prescribed: S v Pietersen S v Pietersen 2002 o Accused 1 and 3 were charged with the same offence and were joined in the same trial o In giving evidence in his own defence, accused 1 gave evidence against accused 3 by which he supported the prosecution’s case against accused 3 o The prosecution wanted to cross-examine accused 1 under s 197(b) o Prosecution wanted to question accused not only about past convictions but about the circumstances surrounding them, the facts underlying them, testimony in previous trials where he tried to falsely incriminate people (which Mr van der Linde thinks could relate to credibility) – it was inevitable that this cross-examination would elicit information of similar facts o Accused 1’s defence objected to this cross-examination: said it was prejudicial to their client and violated the right to a fair trial in s 35(3) The court confirmed that once an accused gives evidence against a co-accused charged with the same offence, the shield afforded by s 197 is forfeited and the court has no discretion to prevent an accused from exercising his rights under s 197(b) o The accused giving evidence is required to answer any question tending to show that he has been convicted of any offence other than the offence with which he is charged o However, the court held that when the shield is lifted in terms of s 197(b), the accused still has the ordinary witness’ immunity against being asked questions which are not relevant either to his credibility or to the issue o Irrelevant cross-examination is not allowed o Mr van der Linde says it must still be relevant to the charged offence E.g. If you are being charged with possession of dagga, it would be irrelevant to be questioned about you stealing a car at your matric dance Will be relevant to be cross-examined about your dagga use, previous convictions re dagga possession o Cross-examination must be limited to the extent that any further details sought are relevant to an issue at the trial Court has a direction to limit the cross-examination under s 197(b) to relevant matters The right to a fair trial must never be undermined o A conflict of interest had arisen between the two accused: what was fair and just to the one may be highly prejudicial to the other 46 o The court’s task is to balance their interests fairly to ensure that the right to a fair trial is upheld with regard to both of them Court concluded that the accused who gives evidence against any other accused may be required to answer any questions tending to show that he has been convicted of any offence other than the offences with which he is charged, but cross-examination as to the details of such conviction will not be permitted Section 197(b) makes the accused liable to cross-examination as to character if she gives evidence against any other person charged with the same offence of an offence in respect of the same facts Loss of shield Court has discretion to restrict and control the ambit of the cross examination in terms of s197(b) - But questions must be relevant o Must be relevant to the issue of credibility - Fair trial o Questions must not prejudice the accused being cross-examined in the conduct of his defence to the extent that his right to fair trial is undermined - - S 197(c): o May also be questioned in respect of your character and previous convictions on a charge of receiving stolen property o Do not learn this section in more detail; just know it is possible S 197(d): evidence of previous convictions may be proven to show that you are guilty of the charged offence o This is a confirmation of the common law similar fact rule o E.g. escaping from prison – prosecution would show that you were in prison for some reason o Must be read with s 211 of the CPA: “except where otherwise expressly provided by this Act or the CJA, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the RSA or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted” o Remember that previous convictions may be shown at bail proceedings A bail hearing is not a trial and these rights refer to fair trial rights o Previous convictions can also be taken into account at the sentencing stage o Accused may bring up previous convictions if it proves an alibi – when an accused does this, he/she runs the risk of having his/her character attacked by the prosecution in cross-examination 211 CPA Evidence during criminal proceedings of previous convictions “Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted.” “Except where expressly provided by this Act” this means that s211 is subject to the similar fact rule by virtue of s252 of the CPA, which applies the law that was in force on 30 May 1961 This section does not prevent an accused from testifying as to her own previous convictions (this might be done, for example, to support a defence based on an alibi) - If an accused chooses this course, she runs the risk of having her character attacked by the prosecution in cross-examination Character of the complainant General rule: - Complainant may be questioned as to credibility (cross-examined) - But his/her character evidence is irrelevant and therefore inadmissible - POD: character or disposition of the complainant is not relevant to credibility o Therefore, evidence which is solely directed at establishing that the complainant has a bad character is prohibited, as is evidence of good character 47 Exceptions: - Crimen injuria o Complainant’s dignity is insulted o Accused can lead evidence as to show that it is the complainant’s character to not be insulted by the remarks - Sexual offence cases (rape or indecent assault) – the complainants character is relevant o Common law Only refers to the character of any woman (does not include men as potential victims of sexual assault) Accused may adduce evidence as to the complainant’s bad reputation or lack of chastity/loose morals In terms of the common law, defence may question the complainant as to her previous sexual relations with the accused The accused is prohibited from leading evidence of the complainant’s sexual relations with other men Complainant may, however, be questioned on this aspect of her private life in crossexamination as it is considered relevant to her credibility in terms of the common law Criticisms of the common law: Cross-examination concerning prior sexual history traumatizes the victim, and is also irrelevant Evidence of this nature is held to be inadmissible in other cases and there are no grounds for admitting it where the case is of a sexual nature Possibility of such cross-examination will deter victims from reporting the offence S227 CPA was based on common law and therefore the legislature responded to these criticisms by means of amending s227 in 2007 o Section 227 CPA – Amendment 1 Legislature finally responded to these points of criticism through an amendment to the current s 227: Provides extra protection to victims of sexual assault S 227 is also now gender neutral S 227 still makes reference to the common law and 30 May 1961 Where relevant, you could still rely on the cases decided before the amendment S 227(1) must be read with s 227(2) After amendment: s227 now reads: “227. (1) Evidence as to the character of an accused or as to the character of any person against or in connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, is alleged to have been committed , shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May, 1961. (2) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom a sexual offence is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no evidence or question in cross examination regarding such sexual experience or conduct, shall be put to such person, the accused or any other witness at the proceedings pending before the court unless — 1. (a) the court has, on application by a party to the proceedings, granted leave to adduce such evidence or to put such question; or 2. (b) such evidence has been introduced by the prosecution. (3) Before an application for leave contemplated in subsection (2)(a) is heard, the court may direct that any person, including the complainant, whose presence is not necessary may not be present at the proceedings. (4) The court shall, subject to subsection (6), grant the application referred to in subsection (2)(a) only if satisfied that such evidence or questioning is relevant to the proceedings pending before the court. (5) In determining whether evidence or questioning as contemplated in this section is relevant to the proceedings pending before the court, the court shall take into account whether such evidence or questioning — 1. (a) is in the interests of justice, with due regard to the accused’s right to a fair trial; 48 2. (b) is in the interests of society in encouraging the reporting of sexual offences; 3. (c) relates to a specific instance of sexual activity relevant to a fact in issue; 4. (d) is likely to rebut evidence previously adduced by the prosecution; 5. (e) is fundamental to the accused’s defence; 6. (f) is not substantially outweighed by its potential prejudice to the complainant’s personal dignity and right to privacy; or (g) is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue. (6) The court shall not grant an application referred to in subsection (2)(a) if, in its opinion, such evidence or questioning is sought to be adduced to support an inference that by reason of the sexual nature of the complainant’s experience or conduct, the complainant — 1. (a) is more likely to have consented to the offence being tried; or 2. (b) is less worthy of belief. (7) The court shall provide reasons for granting or refusing an application in terms of subsection (2) (a), which reasons shall be entered in the record of the proceedings.” S 227 broadly speaks about judicial officers’ discretion, but they don’t actually say what needs to be proven in order to have the complainant questioned, or what the onus is o Zeffertt and Paizes submit that if the court is satisfied that the admission of the evidence could reasonably lead to the conclusion that accused is not guilty, court should allow the questioning of the complainant or adducing of evidence of her sexual history o They are also uncertain as to what the onus is o The Act is unclear 227(5): “shall” is mandatory language: suggests that the court must take these factors into account However, this is not a closed list of factors Court may consider other factors in the interests of justice and fairness This subsection can be criticised because it still allows the judicial officer a wide discretion, which means that his own personal bias may come into play Only one factor needs to be fulfilled in a given case 227(6) If the court believes this is what the questioning or evidence seeks to achieve, it should not grant the application to allow this type of questioning If questioning merely seeks to prove claimant has loose sexual morals and is more likely to have consented, or is less believable, court should not allow the application Not expected to know 227(5) off by heart, but know a few factors; know in general terms what the court will consider Require application to be made to court for leave to adduce evidence of previous sexual history S v M 2002 SCA admitted evidence of a social worker and clinical psychologist which helped confirm that the victim had all the markers of an abused child SCA noted that it is not bound by this opinion; the court is still the ultimate determiner of fact In this case, all the symptoms were consistent with the allegations of sexual abuse, but the evidence also did not exclude all other possible reasons for the symptoms Retains the common law but is now gender neutral and subject to subsection (2) 227(2): leave of the court or unless prior sexual history evidence has been introduced by the prosecution S v Zuma 2006 o Rape case; central issue was whether or not the complainant consented to the sexual intercourse o State made an application to ask the complainant (its own witness) how long before the incident in question she last had intercourse o Permission was granted, and the complainant replied by giving a specific date 49 o Thereafter, the defence made an application in terms of s227 (prior to amendment), to both cross-examine and lead evidence on her prior sexual history o Court granted the application o Court: the purpose of the cross-examination and the evidence the defence wanted to lead concerning the complainant’s behaviour in the past was not to show that she misbehaved with other men Rather aimed to show misconduct in the sense of falsely accusing men in the past The cross-examination and evidence are relevant to the issue of consent in the present matter, the question of motive and also the question of credibility Not aimed at showing that the complainant was a woman of questionable morals Aimed at the investigation of the real issues in this matter and was fundamental to the accused’s defence o Application was granted by the court o Court was satisfied that the questions and evidence were relevant to the issue of consent which was a central matter in this case, as well as her motive and credibility o The point of the cross-examination and the evidence which the defence wished to lead was not to show that she had misbehaved with other men/women in the past or that she was a woman of questionable morals, but rather it was aimed to show that she had falsely accused men in the past of the same conduct o Questioning/evidence aimed at investigation of a real issue before the court and it was fundamental to the defence’s case, therefore the application was allowed Offence being tried? o The wording of s227(2) makes it clear that as far as “the offence which is being tried” is concerned, no application is necessary o However, the fact that no prior application is required does not relieve the court of its common law and statutory duty to ensure that evidence and questioning do not go beyond what is relevant o Exclusion of irrelevancies cannot jeopardise the right to a fair trial o Court has a duty to protect the dignity of the complainant Does amendment limit the discretion of the court? The amended section leaves the court with a significant degree of discretion in determining relative prejudice and whether to not the evidence is fundamental to the accused’s defence Subsections (6) and (7) should provide a barrier to the assumption of old habits R v Davis 1925 Court is bound by statute, to follow the law as it was on 20 May 1961 General principle: evidence which merely goes to show that the accused is by reason of character, disposition or propensity a man likely to have committed the crime charged is not admissible Avoid prejudicial effect Makin formulation: Thompson v The King: defence of an alibi admitted because it raised the issue of identity “There is all the difference in the world between evidence proving that the accused is a bad man, and evidence proving that he is the man” Nexus o Facts: 50 o o o o o o o o o o o Appellant was convicted of committing an act of gross indecency with a male person He appealed this judgement on the grounds that there was an improper admission of evidence He also argued that the principle witness who was also the victim had certain mental defects The acts of indecency were allegedly committed in the bedroom of appellant’s house and he was arrested a month later for these indecency charges Arresting officer found certain grossly indecent photos, 10 photos of nude women and 2 books that were of a sexual nature One of the books was about the trials of Oscar Wilde These books and photos were put in evidence at the appellant’s trial There was also the testimony of a 17 y.o. witness (Taylor) who testified to the fact that two years before, he was shown indecent photos in the appellant’s bedroom, but no acts of indecency were committed at that time The evidence of the complainant in this case made no allegation that books or photos were used during the alleged offence Question before the court was whether the evidence of the books and photos, and the evidence of Taylor, was rightly admitted Character evidence is a 30 May issue – the law as in force in England on 30 May 1961 must be applied to the issue of admission of character evidence Court held that it is a principle of law that evidence that merely shows that the accused is a person likely to have committed the crime charged, by reason of his character, disposition or propensity, is not admissible Such evidence is excluded in criminal matters It is a matter of policy; in order to avoid the possibility of undue prejudice to the accused There are limits to the operation of this general rule Makin case referred to by the court Evidence relevant to an issue before the court will not be rendered irrelevant just because it tends to show the commission of other crimes or because it tends to show that the accused was a likely person to have committed the crime charged In previous judgements, courts allowed this type of character evidence if it destroyed a defence, especially an alibi, i.e. where it does not merely serve to attack your character In Dlamini, the evidence related to destroying someone’s alibi; was not merely to paint the accused in a bad light Character evidence in these instances might be admissible Character evidence might also be admissible on the issue of identity – “there is all the difference in the world between evidence proving the accused is a bad man and evidence proving the accused is the man” If the evidence shows that the accused is the person who committed the crime, it might be admissible, even though it paints the accused in a bad light Court held there must be a nexus to connect the circumstances tendered in evidence, not only with the accused, but with his involvement in a particular crime Court strongly relied on R v Thompson, which is also a gross indecency case, where there was evidence of indecent photographs in the accused’s possession Court there said that these photos are inadmissible unless you can show there is some nexus between them and the participation of the accused in the alleged crime Unless you can show the photos and books in the appellant’s possession were used in the commission of the charged crime, they are irrelevant They should not be used merely to prove that the accused is a bad man Applied these principles to the facts of Davis: there was no issue of identity or alibi here, so it is not one of those special cases where we would allow this type of evidence There was nothing to supply a connection between the items and the commission of the crime by the appellant It was submitted by the prosecution that this type of evidence is admissible where the goal is to show preparation, intent or a system e.g. to show that this is how the accused usually does things No evidence of such a kind here Appellant had shown Taylor pictures before; had not done the same with this complainant – no system here Not an issue of alibi 51 o o Court said that the possession of the photos showed one thing only: that the accused was a depraved person who from his character and propensities was likely to have committed the offence charged The evidence would not be admitted by an English court, therefore the court was bound to follow the same rule Evidence not admitted Conviction and sentence set aside, because it was held that the evidence must have influenced the trial court; importance was attached to it by both the magistrate and the Provincial Division Take away from Davis: if you want to disrupt someone’s alibi, such evidence would be admissible, or to show the accused has some type of consistent system, but this was not the case on these facts S v Jones Need summary for this NB from this chapter: Know that character evidence generally inadmissible Two types: general reputation and specific disposition Shield that prevents you being cross-examined as to your character; may be lost in certain instances Application may be made to adduce evidence/question a claimant in rape case Know the Omar article (??) 52 STUDY UNIT 2.3: SIMILAR FACT EVIDENCE Prescribed: R v Davis, R v Pharenque, Omega, Louis Brand et Frere SA v African Textile Distributors, Laubscher v National Foods, S v Jones (as per class), Savoi and Others v National Director of Public Prosecutions (as per class) Ch.7 (only 7.1 & 7.2) of Textbook Introduction Law in cases not provided for Similar fact evidence rules are part of our common law Similar facts are often relevant and admissible for purposes of proving character therefore similar fact evidence rules to be considered with character evidence S197 CPA prohibits the cross-examination of the accused on previous convictions or bad character unless (d) the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged This chapter deals with similar facts evidence in a wider context, but must be read with the previous chapter - Similar fact evidence and character evidence are often very similar S v M Similar fact evidence is evidence which refers to the peculiar, immoral or illegal conduct of the party on previous occasions other than the current occasion Evidence that shows that the accused has behaved in a similar way in the past What is similar fact evidence? - Facts directed at showing that a party to the proceedings, usually the accused, has acted in a similar way in the past Similar facts are facts that are directed at showing that a party to the proceedings (usually the accused) or a witness in the proceedings (e.g. the complainant) has behaved on other occasions in the same way as he is alleged to have behaved in the circumstances presently being considered by the court Rationale for the exclusion of SFE: Similar fact evidence is generally inadmissible because it is irrelevant; sometimes it may become relevant - Prejudicial effect outweighs its probative value - Rule designed for the jury thought that this would have the ability to unduly influence the decision of the jury o A jury can easily convict an innocent defendant because they have committed a similar offence in the past o This risk is less pronounced in SA because we do not have a jury o Makes a jury believe that because the accused is guilty of past actions he deserves to be punished now, irrespective of his current guilt o Because he is such a serial criminal, there may be other instances that may be undetected o Although this reasoning is typically by a jury, judicial officers can also fall into this trap, but the danger is not as present o We might ask: how applicable is this rule in SA today? What if the accused leads similar fact evidence in order to prove innocence? - Issue of prejudice doesn’t arise and would be admissible in these instances - If similar fact evidence is admitted too readily, it may impact on the proper administration of justice: o E.g. an overworked police force who knows that a person’s past record will be considered by the court may place their focus solely on past offenders o Could result in sloppy investigation - The constitutional right to a fair trial controls the admissibility of similar fact evidence, and a fair trial is put in jeopardy if irrelevant similar fact evidence is admitted - There are instances where such evidence is highly relevant o Some argue why we even exclude such evidence especially in instances where we have a judicial officer o Time-consuming, prejudicial, can encourage poor police work e.g. might focus investigation solely on serial offenders; only focus on the usual suspects o Are these still legitimate considerations? 53 Formulating the rule for determining the admissibility of SFE: Makin v Attorney-General for NSW: - ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.’ - A husband and wife were charged with the murder of a young child - They had fostered this child in return for a sum of money that was insufficient for its maintenance - The child’s body was found buried in the garden of the house occupied by the couple - Prosecution adduced evidence that skeletal remains of other babies had been found in the gardens of homes previously occupied by the accused, and that four other women had given their babies over to the accused having paid them an inadequate amount for maintenance, and that these babies had also vanished - Privy council found that the evidence had been correctly admitted in order to negate the possibility that the child’s death had resulted from death or natural causes The Makin Formulation - Similar fact evidence is excluded if the court is asked to concluded that the accused is guilty because he has a propensity to act in a certain way. It will be admitted if it is relevant. - It may be relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were o Designed or accidental; or o To rebut a defence which would otherwise be open to the accused - Why is this formulation insufficient? o Fails to explain several cases o It is apparent that in a significant number of cases ‘propesntiy itself is so highly relevant to the issue in a particular case, that evidence of propensity itself is admitted’ - Makin case fails to explain the inclusion of similar fact evidence in similar cases e.g. R v Straffen Challenge with the Makin Formulation - 1 Sometimes propensity is highly relevant R v Straffen Propensity was highly relevant in this matter Consider provisio to Main Formulation Prosecution tendered evidence relating to two other young girls All three girls had been strangled, without having been sexually interfered with In all three cases there was no apparent motive for the crime and no evidence of a struggle No attempt to hide the bodies, although concealment was relatively easy Straffen had, at an earlier date, been charged with the murder of the other two girls, but was found unfit to plead on the ground of insanity and committed to an institution Escaped from the institution, within this brief period of escape, L was murdered LQ: was the prosecutions asset (of reducing the evidence of the other two murders) admissible? Was relevant evidence because the accused had a peculiar propensity to act in a certain way – he strangled young girls, he did not sexually assault them and there was no apparent motive - 2 Led to establishment of rigid categories Eg. Identity – R v Davis; guilty intent – R v Pharenque DPP v Boardman - The Makin formulation does not preclude all propensity evidence. 54 Propensity evidence which is highly relevant to an issue before the court is admissible when its probative value exceeds its prejudicial effect. Similar fact evidence is only admissible when it is logically and legally relevant - Where it sufficiently relevant, it may be admitted in both criminal and civil proceedings Summary - Similar fact evidence is generally inadmissible because it is irrelevant. - It will only be admissible when it is both logically (see R v Jones and Omega, Louis Brand et Frere SA v African Textile Distributors) and legally relevant - Relevance is subject to the rule that evidence is only admissible where its probative value exceeds its prejudicial effect. - A necessary proviso: Makin formulation can only be used as a basis for explaining the cases law if the following proviso is added to it: “In some cases, evidence which proves disposition will be admissible if, on the facts of the case, it is a disposition which is highly relevant to an issue in it.” As a consequence of the inadequacies of the Makin formulation, the courts have tended to prefer to cite R v Bond R v Bond - In proximity of time, in method or in circumstance, there must be a nexus between the two sets of facts, otherwise no inference can be safely deduced therefrom Nexus requirement as per R v Bond: - In terms of the nexus requirement, there must be a link between the fact in issue (the probandum) and the similar fact (the probans) - Stephen: o You are not to draw inferences from one transaction to another which is no specifically connected with it merely because the two resemble each other o They must be linked together by the chain of cause and effect in some assignable way before you can draw your inference - This has been suggested to merely be another way of stating that evidence must be relevant The dangers of categorisation Consequence of Makin formulation: it has been interpreted by many lawyers as establishing rigid categories in which SFE will be regarded as relevant Categorisation approach as consequential from the Makin formulation was rejected in Harris v DPP Zeffertt: - The danger of categorising instances of admissibility is that it may lead to causuistry, to insoluable metaphysical problems as to the confines of the categories, and to the error of thinking that, because evidence slots into a category, it will be admissible A requirement of similarity The probative force of the evidence will to a large extent be determined by the degree of similarity of the facts in question Laubscher v National Foods o Court was adamant that there be a strong degree of similarity; similarity of conditions as well This requirement mustn’t be overemphasised If you have something strikingly similar to what is before the court now, the probative force will be stronger Prescribed cases: o Laubscher v National Foods Ltd Civil case – principles re similar fact evidence are the same in civil and criminal cases Facts: Pig farmer wanted to claim damages due to the death of his pigs, who died after he fed them with the defendant’s allegedly poisonous foodstuffs He suffered a loss He wanted to lead evidence of other pig farmers who had suffered similar losses after also having fed their pigs with the defendant’s pig feed 55 o o o o Defendant objected on the grounds that it is similar fact evidence and therefore inadmissible (he argued that it was irrelevant and prejudicial) Court held that before similar fact evidence will be admissible, the similar facts must bear a striking resemblance to the case at hand Similar fact evidence is generally admissible if relevant to the question in issue, but it will be excluded if it only proves disposition or a mere general similarity Court held that on the face of it, if other farmers also used the defendant’s feed and suffered similar losses, their experiences are logically relevant to the present case and have probative force But, this is a merely superficial view and requires further examination There was actually no evidence that the other farmers had bought the feed at the same time as the plaintiff, that their pigs had died within the same amount of time of eating the feed, or that any of the conditions on their farms were the same as those on the plaintiff’s farm It would be necessary to ask the other farmers lots of questions; the defendant would have to lead other evidence – therefore, admitting the evidence in this case would prolong the matter and give rise to collateral issues The plaintiff failed to lay a basis/proper foundation for the leading of this evidence Before court can admit this type of evidence, there has to be a basis for admitting it Court said amongst other things: similarity of conditions on the farms; evidence that food had been purchased at the same time; evidence that animals had been affected at the same time or after consuming the food These factors would establish a basis for admitting the similar fact evidence Due to these similarities, one would be able to establish that the food caused the deaths Could have been a virus Plaintiff didn’t even prove that his pigs fell sick after consuming the food Has to be a basis before you allow this type of evidence S v Jones – do not study Savoi v NDPP Only know what was discussed in class Court admitted that admission of similar fact evidence would not always render a trial unfair Certain instances where it is highly relevant They questioned the retention of this rule but they did not finally decide this matter Found that s 2(2) of POCA is constitutionally sound S 2(2) allows for similar fact evidence despite the fact that it is generally inadmissible R v Davis already discussed R v Pharenque The applicant was charged with theft under false pretences The prosecution applied to lead evidence of two previous convictions of fraud and theft under false pretences (previous and similar crimes) and to cross-examine him as to these previous convictions The court a quo allowed this request and he admitted to these convictions He was found guilty of the current charge The appeal court now needed to decide whether allowing the leading of evidence as to previous convictions and cross-examination on those convictions was correct The facts of the current charge of theft were as follows: The applicant went around selling things, obtaining deposits but never actually delivering the goods His defence was that he had acted in good faith, but he was unable to perform his contractual duties in terms of the orders he obtained due to misfortune On appeal it was found that the evidence of the previous convictions was correctly admitted; showed his guilty intent and also to disprove his defence that he was befallen with misfortune The previous convictions were for similar offences perpetrated by almost identical misrepresentations 56 o Therefore, this evidence was admissible and cross-examination on it was rightly allowed Court said the lapse in time between his previous convictions and the current offence did not affect admissibility, but it did affect the weight of the evidence somewhat Omega, Louis Brand et Frere SA v African Textile Distributors Can just refer to this as the “Omega” case This was a civil case of trademark infringement, and in the alternative, passing off The appeal only concerned the passing off claim Appellants were the manufacturers and distributors of Omega watches Respondent was selling watches with the name “Homegas” On the premises of the respondent, a number of watches were found where the “h” and the “s” had been scratched off, so that the watches simply bore the name “Omega” There was evidence that the respondent had knowledge of this practice and that he had done the same thing to other watches There was also evidence that he sold a device enabling customers to take off the extra letters after buying a watch This amounted to similar fact evidence, which the appellant wanted to lead – court had to decide whether it was admissible or not Court held that generally, similar fact evidence is inadmissible but if there is some kind of logical probative value, it must be admitted Logically relevant here because it was relevant in determining the matter in issue, which was whether this person was committing passing off It was not an innocent coincidence that people were taking off the letters; the respondent was facilitating it The evidence was relevant because it increased the probability that respondent was committing passing off He was unscrupulously not a respecter of trademarks Therefore, the similar fact evidence was admissible in this case Formulating the rule for determining the admissibility of similar fact evidence Classic formulation in Makin v Attorney General for New South Wales o Husband and wife charged with the murder of a young child that they fostered in return for money o The money they were provided was insufficient to take care of the child o Child’s body was later found buried in their garden o Facts were consistent with two possibilities: either that they murdered the child for money or that the child died of natural causes o Prosecution wanted to adduce evidence of skeletal remains found in the gardens of other homes the Makins had occupied o Four other women had previously given the Makins their children to look after and the children had disappeared o Privy council found this evidence was properly admitted by court a quo o Served to disprove the possibility that the child’s death resulted from an accident or natural causes o The evidence was not allowed merely to show that they had a propensity to kill children and take the money of the parents o Court said there were two chains of reasoning: Evidence must be excluded if it merely shows a propensity on the part of the accused to have committed the crime for which he is being tried Must be admitted if the probative value is something other than the prohibited reasoning Prohibited reasoning = merely shows a propensity Could be admissible if e.g. if its bears upon the question whether what happened was an accident or a crime; or it is relevant to rebut a defence which would otherwise be open to the accused o In terms of this formulation, similar fact evidence may not be admitted if it is only used to establish propensity CC in Savoi v NDPP: what is actually wrong with propensity evidence? 57 o The Makin formulation says that if all that the evidence of similar facts shows is a propensity of a particular kind, it is inadmissible, regardless of its probative value CC said that it is not readily apparent why this is so Makin came to be understood as laying down rigid categories in which similar fact evidence would be relevant and admissible, but this approach was later relaxed o The basic principle is now that the admission of similar fact evidence is exceptional and requires a strong degree of probative force o A striking similarity between the facts before the court and the evidence of similar facts is not an essential element in every case o The real question should be whether, when looked at in its totality, evidence of similar facts ‘has sufficient probative value to outweigh its prejudicial effect’, and that is a matter of degree in each case o If it appears in a specific case that evidence of a propensity or tendency is highly relevant, the question is not whether the evidence indicates a tendency but what the relative evidence value of that evidence is Answering the test is a question of logic and common sense o CC held that the approach to the admission of similar facts should not be restrictive o The conclusion is that not all similar fact evidence that is inadmissible would automatically render a trial unfair if admitted Makin case fails to explain the inclusion of similar fact evidence in similar cases e.g. R v Straffen o Straffen was accused of murdering a young girl L o Prosecution gave evidence of two other young girls who died o All three of these girls were strangled and there was no sign of sexual interference o In all three cases, there was no sign of apparent motive and no evidence of a struggle o No real attempt to hide these bodies; found relatively easily; weren’t really concealed o Straffen was unfortunately not prosecuted on the murders of the other two girls – he plead insanity o Sent to a mental institution and he escaped; found near the location where L’s body was found o During his brief period of escape, L was murdered o There was also evidence that he had in fact admitted to killing the other two girls and would have probably been sentenced had he not been sent to the mental institution o The evidence of the other two girls was admitted o Court said it admitted those instances because it proved the identity of the perpetrator Relevant to an issue before the court The court didn’t know who killed L – this was before forensic sciences Becomes difficult to argue that the evidence was not admitted based on propensity Can phrase it differently and say Straffen had a particular way of murdering someone and it was strikingly similar to the way L was murdered Can also say propensity was highly relevant to the fact in issue: it is almost to a degree of excluding all other coincidences; here we have a seeming serial killer, and during his brief period of escape, someone died in the exact same fashion as the crimes for which he was committed to a mental institution Zeffert, Paizes and Skeen argue that propensity can be highly relevant in a particular case and the most striking examples are those of serial killers committing the same crime in the exact same fashion over time The formulation in DPP v Boardman DPP v Boardman - Stressed the important of the principle that SFE is admissible only where its probative value exceeds its prejudicial effect - Headmaster was charged for sexual offence with two male students their cases where decided together - Courts allowed for cross-corroboration of the evidence led in each case - Headmaster would lure them into his office and would incite them to commit a sexual act while he played a passive role - The court takes notice of the fact that this is some type of odd sexual behaviour to want to play a passive role - Look at degrees of similarity - If the SFE was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice an accused, it should be excluded 58 There should be striking similarities between the cases The Makin formulation does not preclude all propensity evidence. Propensity evidence which is highly relevant to an issue before the court is admissible when its probative value exceeds its prejudicial effect - “[T]he essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime . . . Once the principle is recognized, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree” Most common type of similar fact evidence is that of serial offenders Show that accused has committed this type of conduct in the past and consequently, as a serial offender, is also the guilty party in the current charge - E.g. where it is unknown who the offender is and the crime fits the accused’s pattern - Other evidence One mustn’t look blindly at similar fact evidence, must look at all the evidence R v Ball o Mr and Miss Ball were accused of incest o They were brother and sister o The acts in question were committed in 1910 o Main evidence was that these parties held themselves to be married; seen together at night in a house which only had one furnished bedroom, with one double bed that had signs of occupation by two persons o The brother was found half-dressed while the sister was found in a night gown o Similar fact evidence brought before the court: 3 years prior, they were married That happened before incest was made criminal They lived together as husband and wife Had a baby Were registered as parents of the child o Court said the similar fact evidence was highly probative given the circumstances in which they were currently living o Would not have had the same probative value had they lived in a house with two bedrooms o Can draw the inference that they committed these acts of incest o Can bring in the degrees of similarity test SIMILAR FACT EVIDENCE TO CONTINUE INTO ONLINE LEARNING. 59 MISMATCHES IN NOTES (highlighted in yellow) - Small Claims Court: not in slides, textbook but in notes – check class notes Traditional Courts Bill: not in slides, textbook but in notes. Also uploaded onto Sunlearn – check class notes Relevance of Evidence: not in slides or textbook but in notes – info seems useful. S77 & S107 CPA weren’t in the slides or textbook but in notes. Seems useful. Under the evaluation of evidence – no case S v Blyth but it is prescribed in the course framework. Non-prescribed cases for S174 of CPA: she didn’t include S v Mathebula 1997 (W) & R v Kritzinger 1952 (W) in the slides to know – check class notes if she discussed them Impact of Constitution on onus: not in slides or textbook but in notes – seems important. Prinsloo case also not prescribed for us in module framework. Prevention of Organized Crime Act: not in slides or textbook but in notes. Check class notes Need an S v Jones summary The prescribed cases under similar fact evidence (Laubscher, Pharenque, Omega & Savoi) were not in her slides but they are prescribed in the module framework so I’m assuming she just didn’t get to them in class. Idk. 60 Revision: Main aim = assess whether you are able to remember work that was done into first term Question-and-answer type structure (answers do not have to be submitted) 1) Which aspects of the history of our evidential system shaped our current system of evidence? 2) Given that we used the adversarial trial procedure, do we think that the adversarial system is best suited to truthfinding? Give reasons for your answer. Relevance and admissibility of evidence: 3) Briefly explain 5 reasons why logical relevance is not always sufficient to determine admissibility 4) Explain why the appeal court in S v Nel agree with trial court’s refusal to allow an accused to lead psychiatric evidence 5) Discuss 3 criticisms against appellate divisions decision to admit the evidence of an expert witness in R v Khumalo & Nkosi Character evidence: General rule: accused = allowed to adduce evidence of his own good character, but the prosecutor is prohibited from adducing evidence of the accused’s bad character In light of this discussion: 6) Are there any exceptions to the prohibition of bad character evidence in both civil and criminal trials? Provide an outline of those exceptions 7) What does s211 CPA prohibit? 8) How has the law on the admissibility of evidence pertaining to the character of the accused evolved? In prep for next week: read Savoi case and what the court says about Similar Fact Evidence Savoi and Others v National Director of Public Prosecutions and Another 2014 Course framework says that we only need to know what is discussed in class on the podcast she only asked us to read what the court had to say about Similar Fact Evidence Similar Fact Evidence In SA there is a great deal of confusion with regards to SFE inadmissible because it is inherently prejudicial This confusion can be attributed to the Makin case - One of the three major English cases on SFE - Makin formulation: o It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other that those covered in the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury; and it may be so relevant if it bears upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. o To summarise: If SFE only shows predisposition of a particular kind, it is not admissible regardless of any probative value The Makin Formulation is understood as having laid down rigid categories in which SFE would be relevant and admissible DPP v Boardman: - This case is credited with having relaxed the stereotypical approach to the admission of SFE - The basic principle must be that the admission of SFE is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the others. DPP v P 61 - Relaxation of the law on SFE Overruled DPP v Boardman Held that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another - “I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed…But, restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of starting it, is not justified in principle…Once the principle is recognized, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner In which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.” The position in South Africa: - SvD o Probative force of similar fact evidence is derived from a ‘striking similarity’ of the facts testified to by the several witnesses o This insistence on striking similarity may raise more questions than provide answers o Real question should be whether, when looked at in its totality, evidence of similar facts has sufficient probative value to outweigh its prejudicial effect - S v Nduna o SCA in this case followed the Makin formulation - Court in Savoi did not want to attempt to suggest what the ideal development of the position of SFE in SA law should be - Rather, just wanted to highlight that the debate as set out above demonstrates that there is ample room for a less restrictive approach to SFE in SA o This means that not all SFE that is inadmissible in SA law will render a trial unfair if admitted 62 Revision question answers: 1) Which aspects of the history of our evidential system shaped our current system of evidence? - Strict system of evidence is used in SA - Basis of our LOE = English law - 3 categories: - Religious/primitive stage o “Trial by ordeal” was considered an almost perfect aid in truth-finding o Thought the judge of a legal dispute should be God, thought that humans should not stand in judgment of each other o God should “decide” on the outcome of the factual dispute – if they favoured you, you would win your case o Anglo-Saxons: “Ordeal of the accused morsel” If a person was accused of a crime, they were required to swallow a dry piece of bread, accompanied by a prayer. If they were guilty, there were hopes that they would choke on the bread. If you were innocent, God would protect you Logic behind this was that if you were guilty you would choke because you were nervous “Trial by battle” Norman novelty Idea that a dispute could be settled by a duel – person who died was guilty Our legal system can be derived from this idea physical confrontation gradually developed into verbal confrontation We now have trial by argument - The formal stage: o Moved away from supernatural determination - Resulted from an increase in human reason, people turned their backs on old, irrational methods o God = replaced by a human judge to decide guilt or innocence o Oath helpers: someone who could give under oath a guarantee that the witness should be trusted. Your innocence was determined by the amount of oath helpers that guaranteed in your favour They would usually have knowledge in the case – primary method of proof This was a formal procedure in the sense that the tribunal was still not required to weight evidence o This introduced the idea of an oath it is told that an oath is the strongest rule in a person’s conscience - Rational stage and the development of the jury: o Role of oath helpers evolved, they began to serve as adjudicators (jury) As the population expanded the oath givers generally no longer had knowledge of events o Our systems of law are based on a jury system juror = someone who has no idea of facts that occurred in the dispute, jurors are impartial and are a blank slate, and the facts of the case would be told to them by witnesses o Impartial litigator who oversees the process o Witnesses would bring their personal knowledge to court in their testimony o Development: Personal knowledge held by juror prior to testimony would disqualify the juror (like a judge should recuse themselves today if there is a personal tie to the case) as had to be impartial o Juror did not have to determine admissibility of evidence because they are laypersons, they might fall into the trap of believing particular evidence that is unreliable Developed into the jury system and the idea of an independent adjudicator o Admissibility of evidence therefore became a matter of law No longer have the jury system in SA, abolished in 1969. But we still have an evidential system that is based on jury and trials - Disadvantage: we have a system that is based on people who didn’t have knowledge of the law - We have a strict, exclusionary system of law and this can be restrictive for judges who do know the law - Evidence had to first pass test of admissibility before the jury could hear it - A lot of our rules of evidence were developed with a jury in mind, even though we no longer have a jury - Do we still need these strict rules, given that we no longer have a jury system? o Yes 63 o o o o o This is because in lower courts in SA still use assessors, which have a similar role to jurors Assessors are fact finders, they do not make legal determinations Assessors are co-finders of fact, they work with the judge in respective ‘fact finding’. They are guided by the judge and they have to provide reasons for their disagreement with the judge This is why it makes sense to retain an element of the jury system 2) Given that we used the adversarial trial procedure, do we think that the adversarial system is best suited to truth-finding? Give reasons for your answer. - An adversarial system involves two sides who oppose each other - Can be argued that this is well-suited to truth finding due to the fact that it gives each party an opportunity to disclose their version of events in order for accurate adjudication - Couldn’t find much on this 3) Briefly explain 5 reasons why logical relevance is not always sufficient to determine admissibility - It would be wrong to accept or assume that evidence is admissible simply because of its logical relevance - Logical relevance = sine qua non of admissibility; cannot guarantee that the evidence will be admitted - Factors and considerations which may temper relevance: o Might cause something which is logically relevant to nevertheless be excluded o The issues o Reasonable or proper inference o Avoiding a multiplicity of collateral issues o Risk of manufactured evidence o Prejudicial effect o The doctrine of precedent o The principle of completeness o Constitutional imperatives and the position of the accused 4) Explain why the appeal court in S v Nel agree with trial court’s refusal to allow an accused to lead psychiatric evidence - Marais J agreed with trial court for the following reasons: - Purpose of this proposed evidence was to show that a defence witness, (who in her testimony had contradicted aspects of the accused’s testimony) was ‘mildly to moderately retarded’ and therefore likely to ‘clamp up’ under the strain of testifying in court - Marais J followed the R v Turner approach: o Courts are well aware of the fact that differences in intelligence and ability to recall to exist o Ad hoc assessments of such matters are an integral part of the daily round of hearing witnesses testify in court o Deficiencies of such abilities are not likely to remain hidden if the questioning of the witness is thorough as it should o If the court opens the door to evidence which challenges the intellectual ability of a witness – it is difficult to say when this door will be shut o This would lead to the opening of ‘an evidential Pandora’s box’ - The English law as it existed on 30 May 1961 must be applied - The nature of the evidence which the appellant wants to lead by calling a psychiatrist was very similar to that in Turner’s case - Mild psychological issues like differences in intelligence, ability to recall, ability to articulate etc are commonplace and courts are aware that they exist; deficiencies in any of these abilities are not likely to remain hidden if the witness is thoroughly questioned, which they should be - These are intellectual and psychological disabilities of a relatively normal kind - Once the door is opened to this kind of evidence, when will it be shut? Must evidence from a school teacher or university professor be received that shows that a witness is stupid or clever? Or that they have a good or bad memory? - This is an evidential Pandora’s box 5) Discuss 3 criticisms against appellate divisions decision to admit the evidence of an expert witness in R v Khumalo & Nkosi 64 - - Remember the facts of this case: o Two people accused of murdering a child o Child’s throat was cut and front part of the body cut open o Child’s heart was taken out o Left ventricle of the heart containing fatty portion of the heart was removed o Medical examiner said this was the work of a skilled hand o Prosecution called an expert witness (Hofmann) to testify that at that time, there was a practice amongst Zulu witchdoctors where they mutilated young persons and used their body parts, particularly the fat, against bad luck Criticisms: o If you want to rely on motive, try to at least show that it is some kind of personal motive. This rather shows circumstantial evidence as opposed to personal motive o There should be a personal connection between the impugned circumstantial evidence and the party concerned o This evidence was too tenuous to have warranted admission – there was no link between K and the practice referred to by the expert and no evidence that K had experienced ill-luck or was expecting imminent ill-luck 6) Are there any exceptions to the prohibition of bad character evidence in both civil and criminal trials? Provide an outline of those exceptions - S197 CPA provides an accused with protection against the admission of bad character evidence - Bad character evidence is prohibited unless: o He gives evidence of his own good character, either by giving evidence himself or by leading or crossexamining witnesses o He attacks the character of the complainant or any other prosecution witness; o He gives evidence against a co-accused; o He is facing a charge of having received stolen property; o His previous conviction relates directly to proof of the present charge 7) What does s211 CPA prohibit? - “Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he or she has been so convicted.” - “Except where expressly provided by this Act” this means that s211 is subject to the similar fact rule by virtue of s252 of the CPA, which applies the law that was in force on 30 May 1961 - This section does not prevent an accused from testifying as to her own previous convictions (this might be done, for example, to support a defence based on an alibi) - If an accused chooses this course, she runs the risk of having her character attacked by the prosecution in cross-examination 8) How has the law on the admissibility of evidence pertaining to the character of the accused evolved? General rule: - Complainant may be questioned as to credibility (cross-examined) - But his/her character evidence is irrelevant and therefore inadmissible - POD: character or disposition of the complainant is not relevant to credibility o Therefore, evidence which is solely directed at establishing that the complainant has a bad character is prohibited, as is evidence of good character Exceptions: - Crimen injuria o Complainant’s dignity is insulted o Accused can lead evidence as to show that it is the complainant’s character to not be insulted by the remarks - Sexual offence cases (rape or indecent assault) – the complainants character is relevant o Common law 65 o Only refers to the character of any woman (does not include men as potential victims of sexual assault) Accused may adduce evidence as to the complainant’s bad reputation or lack of chastity/loose morals In terms of the common law, defence may question the complainant as to her previous sexual relations with the accused The accused is prohibited from leading evidence of the complainant’s sexual relations with other men Complainant may, however, be questioned on this aspect of her private life in crossexamination as it is considered relevant to her credibility in terms of the common law Criticisms of the common law: Cross-examination concerning prior sexual history traumatizes the victim, and is also irrelevant Evidence of this nature is held to be inadmissible in other cases and there are no grounds for admitting it where the case is of a sexual nature Possibility of such cross-examination will deter victims from reporting the offence S227 CPA was based on common law and therefore the legislature responded to these criticisms by means of amending s227 in 2007 Section 227 CPA – Amendment 1 Legislature finally responded to these points of criticism through an amendment to the current s 227: Provides extra protection to victims of sexual assault S 227 is also now gender neutral S 227 still makes reference to the common law and 30 May 1961 Where relevant, you could still rely on the cases decided before the amendment S 227(1) must be read with s 227(2) After amendment: s227 now reads: “227. (1) Evidence as to the character of an accused or as to the character of any person against or in connection with whom a sexual offence as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, is alleged to have been committed , shall, subject to the provisions of subsection (2), be admissible or inadmissible if such evidence would have been admissible or inadmissible on the 30th day of May, 1961. (2) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom a sexual offence is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no evidence or question in cross examination regarding such sexual experience or conduct, shall be put to such person, the accused or any other witness at the proceedings pending before the court unless — 3. (a) the court has, on application by a party to the proceedings, granted leave to adduce such evidence or to put such question; or 4. (b) such evidence has been introduced by the prosecution. (3) Before an application for leave contemplated in subsection (2)(a) is heard, the court may direct that any person, including the complainant, whose presence is not necessary may not be present at the proceedings. (4) The court shall, subject to subsection (6), grant the application referred to in subsection (2)(a) only if satisfied that such evidence or questioning is relevant to the proceedings pending before the court. (5) In determining whether evidence or questioning as contemplated in this section is relevant to the proceedings pending before the court, the court shall take into account whether such evidence or questioning — 7. (a) is in the interests of justice, with due regard to the accused’s right to a fair trial; 8. (b) is in the interests of society in encouraging the reporting of sexual offences; 9. (c) relates to a specific instance of sexual activity relevant to a fact in issue; 10. (d) is likely to rebut evidence previously adduced by the prosecution; 11. (e) is fundamental to the accused’s defence; 12. (f) is not substantially outweighed by its potential prejudice to the complainant’s personal dignity and right to privacy; or (g) is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue. 66 (6) The court shall not grant an application referred to in subsection (2)(a) if, in its opinion, such evidence or questioning is sought to be adduced to support an inference that by reason of the sexual nature of the complainant’s experience or conduct, the complainant — 3. (a) is more likely to have consented to the offence being tried; or 4. (b) is less worthy of belief. (7) The court shall provide reasons for granting or refusing an application in terms of subsection (2) (a), which reasons shall be entered in the record of the proceedings.” S 227 broadly speaks about judicial officers’ discretion, but they don’t actually say what needs to be proven in order to have the complainant questioned, or what the onus is o Zeffertt and Paizes submit that if the court is satisfied that the admission of the evidence could reasonably lead to the conclusion that accused is not guilty, court should allow the questioning of the complainant or adducing of evidence of her sexual history o They are also uncertain as to what the onus is o The Act is unclear 67 2.3 SIMILAR FACT EVIDENCE (continued) THE GENERAL RULES Similar fact evidence rules to be considered with character evidence Remember: - Similar fact evidence often reflects a person’s character but character evidence may not necessarily be similar fact evidence Similar fact evidence rules are part of our common law - CPA has no provision for similar fact evidence. - Therefore, ito Section 252 of the CPA, we therefore have to apply the law as it was on the 30 May 1961 - This means when dealing with sections such as section 197(d) and section 211 of CPA, we are actually applying this (double check, the voice note jumps a bit) What is similar fact evidence? - Facts directed at showing that a party to the proceedings (usually the accused) or a witness in the proceedings (such as a complainant), has behaved on other occasions in the same way as he is alleged to have behaved in the circumstances presently considered by the court. General rule: similar fact evidence is inadmissible because it is irrelevant - It will only be admissible when it is both logically and legally relevant applies to both civil and criminal cases - Question: Why is it inadmissible? Provide and explain 3 reasons: o Its prejudicial effect outweighs its probative value There are many types of prejudice that can arise It may be prejudicial to the accused E.g. a jury that is aware of the accused’s past bad conduct/character may decide he should be punished irrespective of whether he is guilty of the offence or not – the jury may convict though a reasonable doubt as to the accused’s guilt exists Accused may have to defend the current offence he is being charged with and also other past charges May result in procedural inconvenience The accused is always surprised by this type of evidence The investigation into collateral issues that arises out of the introduction of similar fact evidence inevitably extends the length of the trial, making the trial more costly and placing additional demands on the It has the potential to undermine the proper administration of justice E.g. an overworked police force, knowing that the persons’ past record will be considered the court, may be tempted to focus on past offenders. This may result in sloppy investigations It may also discourage persons who are trying to rehabilitate themselves. It may also make it easer for the police to bring undue pressure to bear on past offenders and in this way induce involuntary confessions and admissions - The constitutional right to a fair trial must ultimately control the admissibility of similar fact evidence, and a fair trial is negatively impacted if irrelevant similar fact evidence is admitted What if the accused leads similar fact evidence? - There is nothing prohibiting the accused form seeking to have similar fact evidence admitted in his or her defence EXCEPTIONS TO THE GENERAL RULE The courts have had difficulty deciding on the parameters of this exclusion, i.e. when similar facts are to be excluded and the reasons why it should be excluded - The most influential case for this ↓ Makin v Attorney General for New South Wales - Facts 68 o Husband and wife had been charged with the murder of an infant who had been given to them by the child’s mother to foster after the payment of a fee (this amount was insufficient for the maintenance of the child) o The body of the infant was found by a workman in the garden of the house where they resided o At the trial, the prosecution brought evidence that 12 other children had been found buried in the backyard of various residences that this couple had occupied. o The trial court admitted the evidence the evidence and found the couple guilty o The matter went on appeal to the Privy Council – the defense challenged the admission of similar fact evidence by the trial court o The PC held that similar fact evidence was correctly admitted not because it showed that the accused had the propensity to act in a certain way, rather it was admitted because it negated the possibility that that the child/ren had died of natural causes or through an accident o The PC set the Makin Formulation - The Makin Formulation o Similar fact evidence is excluded if the court is asked to conclude that the accused is guilty because he has a propensity to act in a certain way. However, it will be admitted if it is relevant (i.e. the evidence will be excluded if its purpose is to establish propensity) o It may be relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused o The issue of propensity is what has raised challenges Problems with the Makin Formulation - Question: What is the main limitation of the Makin Formulation (i.e. why is it inadequate)? Use case law to substantiate your answer o It fails to explain several cases. o It is apparent that in a significant number of cases “propensity itself is so highly relevant to the issue in a particular case, that evidence of propensity itself is admitted” o Case law: R v Straffen Accused (S) was charged with murdering a young girl (L) Prosecution brought forward evidence relating to two other girls All three girls had been strangled w/o having been sexually interfered with In all three cases there was no apparent motive for the crime and no evidence of a struggle; there was also no attempt to hide the bodies S had been charged with the murder of the other two girls at an earlier date but was found unfit to plead on the ground of insanity S escaped from the institution and was seen near where L’s body was found There was also evidence that he had admitted to killing the other two girls this evidence was admitted on the ground that it was relevant to identity In the Straffen case, it is difficult to argue that the probative value of the evidence was not based on propensity, since it established that the accused possessed a propensity of the most unusual kind: he strangled young girls, in peculiar circumstances, and for no clear motive. It was this peculiar propensity that was NB to the issue, namely, the identity of the killer, which made the evidence admissible The proviso to Makin - Because of the difficulties of the formulation, it can only be used as a basis for explaining the case law if the following proviso is added: “[I]n some cases, evidence which proves disposition will be admissible if, on the facts of the case, it is a disposition which is highly relevant to an issue in it” o i.e. when similar fact evidence is relevant and therefore should be admitted by the court - Because of the inadequacies of the formulation, courts have often cited the proposition of the Judge in R v Bond: o Similar fact evidence will be admitted when: ‘In proximity of time, in method or in circumstance, there must be a nexus between the two sets of facts, otherwise no inference can be safely included therefrom.’ (this is just another way of saying similar fact evidence will be admitted if it is relevant) 69 - The nexus requirement in R v Bond o There must be a link (in cause and effect) between the fact in issue (the probandum) and the similar fact (the probans) - this link must be there before you can draw an inference o It is said that this requirement is just another way of saying the evidence must be relevant Another problem with the Makin formulation is that it has led the courts and lawyers, such as in R v Davis, to establish rigid categories in which similar fact evidence will be excluded - For example: Similar fact evidence will be included if it shows the identity of the accused or if it shows intent or guilty knowledge - The challenge with establishing these rigid categories where this exception to similar fact evidence will apply, is that it may lead to exclusion of relevant or highly relevant evidence in certain cases o Thus, some academics and courts have said that perhaps we should move away from this culture of establishing rigid categories/exceptions - The categorization approach was rejected in Harris v DPP - There is clearly a need for a more flexible rule (see later: S v Savoi) The Boardman formulation - Response to the Makin formulation - DPP v Boardman o House of Lords in 1975 o The court accepted the Makin formulation (endorses the approach) o The court however stresses that the importance of still sticking to the principles by saying the Makin formulation does not preclude all propensity evidence. Propensity evidence which is highly relevant to an issue before the court is admissible when its probative value exceeds its prejudicial effect. i.e. similar fact evidence will not be excluded where its probative value does not exceed its prejudicial effect - Challenges with the Boardman formulation o The case set this requirement for striking similarities, and the position of the court in this instance has been contested RELEVANCE Similar fact evidence is generally inadmissible because it is irrelevant. It will only be admissible when it is both legally and logically relevant. Legal relevance See S v Jones and R v Pharenque o S v Jones Only read the head note for this case In a criminal trial, there is no absolute prohibition against the reception of evidence that the accused is guilty of a crime other than that with which he is charged. Such evidence is admissible if it is legally relevant. Although a finite list of cases where such evidence may or may not be relevant cannot be furnished, one proposition is abundantly clear: Evidence of other offences cannot be presented to prove a propensity on the part of the accused towards criminal conduct. o R v Pharenque Court looks at statute to determine legal relevance Accused had been charged with 32 counts of theft by false pretenses The prosecution then applied to cross examine him as to his previous and similar crimes The court a quo allowed the request so applicant was cross -examined The applicant was then found guilty of the charge On appeal the court had to decide whether the court a quo have correctly allowed the cross-examination of the accused The court then looks at the Criminal Procedure and Evidence Act 31 of 1917 "An accused person, called as a witness upon his own application shall not be asked, and if asked, shall not be required to answer any question tending to show that he . . . has been convicted of any offence other than that wherewith 70 he is then charged unless . . . the proof that he has been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged." The cross examination of an accused of his previous crimes/convictions is excluded except in circumstances where it is shows/proves that the accused is guilty of the offence he being charged with Ito the statue, the appeal court held that the evidence of the previous convictions of the accused had been correctly admitted because it showed the accused was guilty Makin “So that the point to be determined is whether those convictions were admissible evidence to show that the accused was guilty of the crime with which he was charged. And they would be admissible if relevant to that issue. That is to say if they went to show, not merely that the accused was a person likely from his criminal record to have committed the offence under investigation, but that he did as a fact commit it.” Evidence admissible and cross-examination correctly allowed Logical relevance - See Omega, Louis Brandt Et Frere Sa and another V African Textile Distributors o Trademark, civil case o It was alleged that the respondent had been running a business selling Homegas watches (pronounced: omega) o However, on his business premises, the respondent was essentially removing the first and the last letters of the word “Homegas” so that that the name of the watches would read “Omega” (hahahahaha this is so shady) o The problem with this is that there was another brand, Omega, who were the manufacturers and distributors of watches o The evidence was brought before the court that the respondent knew about the removal of the two letters and that they are selling a device to essentially help the clients remove the “h” and the “s” from the watches that they would buy so that they would read “Omega” this is similar fact evidence o The court allowed the leading of this evidence because it increased the probability that the respondent was committing the crime of passing off (even stated the general rule that similar fact evidence is inadmissible) “In civil cases the Courts will admit it if it is logically probative, that is, [if] it is logically relevant in determining the matter which is in issue, provided that it is not oppressive or unfair to the other side, and that the other side had fair notice of it and is able to deal with it.” REQUIREMENTS AND OTHER FACTORS The requirement of similarity - The probative value of the similar fact evidence is largely determined by the degree of similarity between the person’s conduct on other (prior) occasions and on the occasion that is before the court at a particular time. - What does the requirement entail? o Courts have been grappling with the degree of similarity that is required in a particular matter or as a general rule o Remember that the court in Boardman held that the admission for similar fact evidence is exception to the general rule that similar facts are to be excluded; and because it is an exception it requires a strong degree of probative value in order for it to be admitted, and that entails that striking similarities have to exist between past and present conduct in order for similar fact evidence to be admitted This is a very high threshold that could result in many incidences of similar fact evidence being excluded because there wouldn’t be striking similarities Some courts have actually allowed similar fact evidence even though there were no striking similarities 71 For e.g. R v Bond: Medical practitioner who had been accused of committing the crime of abortion The trial judge admitted the evidence of another woman to the effect that the practitioner had performed a similar operation on her with the intent to abort. This had happened 9 months before the case being tried The witness also testified that the accused himself had told her that he had in the past “put other girls right” The accused argued that he had been performing a normal medical procedure on the complainant in the matter and that the abortion happened by accident The court admitted the evidence of the witness despite there not being striking similarities The reason the court admitted the evidence because the evidence made it highly implausible that a medical practitioner, who had an experience with performing abortions, mistakenly conducted an abortion on the complainant Therefore, the evidence was admitted even though there were no striking similarities because it negated the possibility of a coincidence Even if we look at the case of DPP v Boardman, you will notice the court used the testimonies of the two young men involved in the case to take judicial notice of headmaster’s/accused’s unusual sexual behaviour. Remember that the case involved the Headmaster of an allboys school who had been charged with committing certain sexual offences on one student and inciting another student commit such offences There were no striking similarities per se but the court replied on the evidence to take judicial notice of accused’s unusual sexual behaviour which related to the fact that both boys testified that the headmaster would take a passive role during the offence (he would instigate sexual activity but take a passive role) The court held that it was highly unlikely that both boys would construct the same lie The similarities between the testimonies of the two young men were beyond coincidental – it was highly unlikely that it was a coincidence that both boys testified the role of the headmaster It has therefore been argued that rather saying that the similarities between past and present conduct or the similarities between testimonies have to be strikingly similar, the test should be: whether the evidence concerned explains away the possibility of a coincidence i.e. does it explain away that the similarities are a mere coincidence this is known as the test of coincidence The improbability of the coincidence can be used to establish a link or a nexus between past and present conduct Therefore, even though DPP v Boardman sets very high threshold for striking similarities, there are discussion about the fact that the test should rather be one that allows the similarities to negate a possibility of coincidence (S v Savoi also discusses this) 72 In applying the coincidence test, the court must take into account the context/circumstances of the case (i.e. what is the context that the similar fact evidence is being raised) by looking at the context of the case, the court will allowed to determine the degree of similarities on a case-by-case basis. This means there shouldn’t be a blanket test of the degree of similarities required, the courts should be able to look at the context of a case and determine the similarities in that case. The result is that courts should be allowed to admit similar fact evidence even if there aren’t striking similarities between the testimonies brought in relation to the past conduct and the testimonies of those involved in the matter before the court at that time. - Question: Looking the circumstances of Makin and Boardman respectively, what degree of similarity do you think should of/would have been required in each case and why? o Seems to be more opinion based (or may not) but I’ll give some pointers from the book to help direct o In Makin, similar fact evidence was required to fulfil a large part of the prosecution’s task. In its absence it was difficult to sustain the contention that the accused were responsible for the death of their victims. In such a case, a high degree of similarity will be required between the incidents before a sufficient link can be established o In cases such as Broadman, where there is other evidence supporting the prosecution case, the degree of similarity required is much lower. The facts in issue - The court must decide the relevance of similar fact evidence with regards to the facts in issue - It’s important that all parties, including the court, to identify the issues before the court o Civil matters: the facts in issue are established in the pleadings o Criminal matters: things are a bit more complicated because of the fact that the accused is allowed to deny every element of a charge or raise a defence that is available. This means that the prosecution doesn’t always have a sense of what the accused’s defense is in a matter which could make it difficult for the prosecution to know which similar fact evidence is relevant However just because the prosecution is not aware of what the defence of the accused is or the accused has denied every element of the crime, it doesn’t necessarily allow the prosecution to introduce any similar fact evidence because it is vaguely relevant. In most cases, the relevant issues are apparent from the nature of the case, therefore the prosecution must use the nature of the case as a guide to determine which similar fact evidence is relevant Other evidence available to the court - Common rule of evidence: Evidence mustn’t be considered in a “piece-meal” fashion; evidence must be considered holistically - The admissibility of similar fact evidence must be determined in light of the other evidence before the court. o SvD What the appeal court does in this case shows us the importance of the court considering evidence as whole The accused had been convicted of multiple crimes including 6 counts of rape and 1 count of robbery The accused appealed against the one count of rape and the robbery conviction Both of the convictions he had appealed happened to have been committed against the same complainant Unfortunately, at the trial court, the complainant had not been able identify the accused and the trial court had relied on circumstantial evidence in order find the accused guilty In a confession, the accused has admitted to committing the other crimes he was charged with but denied the two charges that were now before the appeal court 73 It had just so happened that there was evidence that was led that the person who had raped the complainant in the matter before the appeal court had told her to “sleep down” and had used these specific words in one of the other rape charges that he had been found guilty of The trial court convicted the accused on the basis of the similarity of the words “sleep down” Court said that the words were so distinctive that the probative value was sufficient to justify the admission of those words to establish the identity of the accused In the appeal court Court said that the words in and of themselves are not sufficient to confirm the identity of the accused What was needed for the probative value of the words to meet the required degree of similarity was for the words to be considered in light of the other evidence when the words are considered in light of the other evidence, then they meet the required probative value The other facts that were similar was that the rape had been committed in a particular area and time period (4 months), and the accused would demand money before committing the rapes, he would also remove/ask for the victims watch The court affirmed the conviction on the basis that the words that he accused at used, when considered with all the other evidence, pointed to the fact that the accused was guilty There was striking similarities between the facts that had been used to find him guilty at the trial court and the evidence before the appeal court Criticism of the decision of the appeal court The appeal court makes reference to Broadman in saying that it finds the accused guilty/confirms the conviction because of there were striking similarities between the matters heard before the trial court and those heard a the appeal court, however when you look at the facts used to find the accused guilty, there wasn’t necessarily striking similarities It is important to note that there is a difference between similarities and striking similarities There were similarities in that the incidences had taken place in a particular area, during a particular time, and the accused would demand money before committing the rape these aren’t strikingly similar, there was no particular nature in which the accused would commit the crimes So, it was incorrect for the court to say there were striking similarities It would have been sufficient for the court to say that there was similarities and those similarities were sufficient to negate the possibility of a coincidence To summarize: This case illustrates that the test for similarity is not actually a reasonable test – the threshold is too high. In S v D the court affirms Boardman, applies the strikingly similarity test but if you look at the facts, there were no striking similarities but there were some similarities that negated the possibility of a coincidence. SIMILAR FACT EVIDENCE IN SA S v Savoi (I think she meant Savoi and Others v National Director of Public Prosecutions) - Case gives a synopsis on the development of similar fact evidence in SA but doesn’t give conclusive evidence on the status of this rule set in DPP v Boardman that there must striking similarities for evidence to be admitted 74 - - - Case dealt with a constitutional attack on s 2(2) of POCA which provides that: 'The court may hear evidence, including evidence with regard to hearsay, similar facts or previous convictions, relating to offences contemplated in subsection (1), notwithstanding that such evidence might otherwise be inadmissible, provided that such evidence would not render a trial unfair.' o Basically: POCA allows for the admissibility of similar fact evidence that would otherwise be inadmissible provided it would render the trial unfair The accused argued that POCA infringes on the right to a fair trial in section 35(3) of the Constitution Court held that the admission of otherwise inadmissible similar evidence would not necessarily render a trial unfair Question: Read para 50-59 of S v Savoi and answer the following questions: o Which English judgment did the Constitutional Court favour above DPP v Boardman and why? o Did the Constitutional Court in S v Savoi overrule S v D? o What is the position regarding the degree of similarity required for the admission of SFE in South Africa? o (will highlight in yellow possible answers/pointers to the answers) Para 50 – 59: o [50] In South Africa the admission of similar fact evidence is surrounded by some degree of confusion; but perhaps less so in recent times. At the centre of this confusion is Makin v Attorney-General for New South Wales. Similar fact evidence is inadmissible because it is inherently prejudicial. o [51] Makin is one of three major English cases on similar fact evidence. The other two are DPP v Boardman and DPP v P. The legal principle that Makin is famous for goes: “It is undoubtedly not competent for the prosecution to adduce evidence tending to that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to [show] the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.” o [52] What the first part of this formulation says is that, if all that evidence of similar facts shows is proclivity of a particular kind, it is not admissible regardless of the probative value of that disposition. It is not readily apparent why it was that propensity in and of itself might not, in a given set of circumstances, be sufficiently relevant to an issue before a trial court. Presumably because of its reference to design, accident and rebuttal of a defence, the Makin formulation came to be understood as having laid down rigid categories in which similar fact evidence would be relevant and admissible; the converse being the inadmissibility of similar facts not falling within those categories. o [53] The House of Lords decision in Boardman is credited with having relaxed the stereotypical approach to the admission of similar fact evidence. Lord Wilberforce said: “The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s). I use the words ‘a cause common to the witnesses’ to include not only . . . the possibility that the witnesses may have invented a story in concert but also the possibility that a similar story may have arisen by a process of infection from media of publicity or simply from fashion.” o [54] A major and – I would add – welcome relaxation of the English law on similar fact evidence came with DPP v P. In a unanimous judgment the House of Lords – expressly overruling Boardman on this point – held that “it is not appropriate to single out ‘striking similarity’ as 75 o o o o o an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another” “I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that of which Reg v Straffen [1952] 2 Q.B. 911 and Rex v Smith (1915) 11 C.r. App. R 229, provide notable examples. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume on Crimes, 3 ed. (1844), vol. II, p. 384, said long ago: ‘The aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts.’ Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.” This is a salutary proposition. [55] What is the position in South Africa? It is not necessary to track the historical development. I refer only to two decisions: S v D and S v Nduna. In S v D the Appellate Division quoted with approval the passage in Boardman that says the probative force of similar fact evidence is derived from a “striking similarity” of the facts testified to by the several witnesses. The insistence on striking similarity may lead to sophistry and technicality and raise more questions than provide answers. The real question should be whether, when looked at in its totality, evidence of similar facts “has sufficient probative value to outweigh its prejudicial effects”; and that is a matter of degree in each case. [56] S v D, which was rejected in the Zimbabwean case of S v Banana, appears to be still law in South Africa. And so is the more recent Supreme Court of Appeal judgment in Nduna. In Nduna the Supreme Court of Appeal, although relying in the main on R v Katz and R v Matthews, followed the Makin formulation and the category based admission that seems to have come after Makin. The category in Nduna was the accused’s modus operandi in committing acts of robbery. [57] Kruger says: “If in certain circumstances it appears that evidence of a tendency is highly relevant, the question is then not whether the evidence indicates a tendency but what the relative evidential value of that evidence is. In S v Banana 2000 (2) SACR 1 (Z) Gubbay CJ pointed out that the reformulation by Lord Mackay in R v P [1991] 3 All ER 337 (HL) of the test for admission of similar facts emphasises that the test concerns the evidential value of the evidence. Answering the test is thus a question of logic and sound common sense, not of legal philosophy. Whether the evidence has sufficient evidential value to overshadow its negative effects depends on the particular facts of each case and, of course, on the court’s balanced value-judgement.” [58] I will make no attempt at suggesting what the ideal development of the law on similar fact evidence should ultimately be. That is not called for in this case. That said, in my view, the debate above adequately demonstrates that in South Africa there is still ample room for a less restrictive approach to the admission of similar facts. [59] What emerges from this is that not all similar fact evidence that is inadmissible according to South African law would automatically render a trial unfair if admitted. EXCLUSION OF SIMILAR FACT EVIDENCE Good example of when courts would exclude similar fact evidence: Laubscher v National Foods - Civil case - Facts 76 o There was a farmer who sought to claim damages on the basis that his pigs had eaten contaminated food stuff that he had bought from NF o L wanted to lead evidence from other pig farmers whose pigs had also apparently died after been fed the food stuff from NF o NF objected to the evidence because it was similar fact evidence and was therefore inadmissible Question: What are the rules on the admissibility of SFE in civil matters? Question: Why did the court in Laubscher v National Foods conclude that the requirement for similarity had not been satisfactorily established by the plaintiff? - The court held that the evidence given by L was irrelevant in that it lacked similar similarity. The evidence did not establish that the foodstuff had been bought during the same time period that the plaintiff purchased it. Nor did it indicate that the pigs had become ill within the same time of eating it, nor that the conditions on the farms were similar, or that the husbandry (farming) practices were similar 77 Study Unit 2.4 OPINION EVIDENCE Prescribed: S v Jones (as per class), S v Nel, Holtzhauzen v Roodt, S v SB Ch.8 textbook Opinion Evidence Is the opinion of a witness – whether expert of/or lay person – admissible evidence? Is opinion evidence actually admissible in court? An opinion is an inference, conclusion or belief that is given by a witness. Should such evidence be admitted? Helen Suzman Foundation v President (CC) o “Any opinion, whether from a lay person or expert, which is expressed on an issue the court can decide without receiving such opinion is in principle inadmissible because of its irrelevance. Only when an opinion has probative force can it be considered admissible.” o The way that this general rule is often expressed Is that the courts will only receive opinion evidence if it can receive appreciable help from the opinion evidence. This is the ultimate test to decide whether to admit the opinion of someone. o The opinion has to be able to help the court deal with the issues. First Question to ask is: o What are the issues? General Rule: if the issue is of such a nature that the opinion of an expert or a lay person can assist the court in deciding the issue, the opinion evidence is relevant and admissible. o Exception: Unless there is a rule that calls for an exclusion of that opinion, so for example the hearsay rule which we will talk about in 2nd semester. o It can also be said that if the opinion relates to an issue that the courts can decide without the assistance of opinion evidence then the opinion is irrelevant and inadmissible. Challenges with opinion evidence 1. Distinguishing between fact and opinion • Is this distinction necessary? • Colgate Palmolive (Pty) Ltd v Elida-Gibbs (Pty) (Ltd) 1989 (3) SA 759 (W) 78 o • • • The plaintiff contended that the advertisement of the defendant was designed to mislead consumers into believing that the toothpaste of the dependent had certain qualities in relation to the removal of plaque etc from the teeth when in reality it did not have those qualities. So, it was a case of an advertisement that was misleading. o The plaintiff then sought to lead evidence of a lay person to show how that person understood the advert, the purpose of this would be so that the layperson could tell the court how he understood the ad. o The defendenant rejected that evidence on the ground that it was nothing more than an opinion of a layperson, and that opinion was given on a matter that the courts themselves could decide and make such a finding on their own. o However counsel for the plaintiff said that the evidence was admissible because the purpose of the evidence was not to persuade the court to adopt the opinion of the witness but rather to prove deception. o The court agreed with the plaintiff and overruled the objection of the defendants and the reason was that the facts of the opinion was contained in the evidence of a layperson could not preclude the evidence of its main purpose which was to show that as a result of the lay persons interpretation of the advert he was mislead. In essence the opinion was a fact in issue and the opinion was used to prove the fact in issue. o The point of this judgment is to illustrate how this distinction between fact and opinion can lead to challenges and litigation where there is discussion on whether or not a party’s opinion is a fact or an opinion. It is sometimes said that ito the opinion evidence rule that a witness must give evidence of facts and not of opinion unless they are an expert, if they are not an expert then that evidence is given as an exception to the general rule. A formulation that essentially distinguishes between fact and opinion is a distortion of the opinion evidence rule and one of the main issues with that is that it ignores the practical reality in law that it is not always easy to distinguish between a fact and an opinion. This causes issues that is why the courts generally don’t distinguish between fact and opinion as we will see in the Colgate case. 2. Instances where the court is not in a position to judge the truth or accuracy of the opinion expressed. • This would put the court in a precarious position because how else is the court supposed to know that the opinion that is expressed by the witness is in fact reliable, this will raise an issue. • Sterwarts & Lloyds of SA Croydon Engineering v Crodon Engeneering 1979 (1) SA 1018 (W) • The trial court was requested to examine certain hand writing under a high powered microscope in order to help the court make its decision relating to the credibility of 2 witnesses. • So the counsel argued that the courts would be able to make these observations with the guidance of an handwriting expert. So the court is being asked to make a decision to use equipment that the court is not skilled to use and it is having to rely on an experts guidance. • The court declined the invitation because it said it didn’t have the expertise to decide if the observations are reliable. The importance of this is that in instances where the court uses opinion evidence it should at least be able to make its own finding or opinion regarding the reliability of the evidence and it should be able to do so on the basis of ordinary knowledge. • Rex v Makeip • The judge had to examine plaster casts of footprints with an ordinary magnifying glass and the appellate division here said well there is no problem with that because the court was able to use everyday knowledge and skill to make its decision. • S v Mkgabela • This general rule was further confirmed in this case where the courts concluded: • “It will always be more satisfactory if the court is able, by means of [any relevant devise], to make the necessary comparisons and to assess the cogency of the … evidence.” • So that’s the general rule there in instances where the court finds itself having to make decisions in relation to a matter where it is not in a position to decide whether the opinion expressed is in fact accurate and reliable. The court will generally ask not to receive that evidence because it is not in a position to formulate its own observations. 79 • The important thing there is that the is that it is irregular for a court to try and qualify itself as an expert or to rely on its own specialist knowledge if it does not have that knowledge, the court has to be very frank about what it knows and what it doesn’t know, and if it doesn’t know much about the subject at issue it calls in a witness and then it should be able to judge the reliability of what the witness has said. Understand the basis of the rule • Opinion evidence is excluded where it is superfluous (because it is irrelevant) and admitted where it can assist the court (because it is relevant) • So we’ve said that the ultimate test for determining the admissibility of opinion evidence is whether the court can receive appreciable help from the evidence. This means that any opinion which is expressed on an issue which the courts can decide without receiving such an opinion is inadmissible because it is irrelevant. • Questions: a. Why does the court exclude superfluous opinion evidence? b. What happens In instances where the witness is in a better position than the court to form an opinion, and why is such evidence admitted? • “Ultimate issue” doctrine o The rule that opinion evidence can assist the court competes with other rules, these include the principle that the rule is intended to protect the function of the court and that the witness should not usurp the functions of the court and you’ll see this idea that about witnesses usurping the function of the court come up frequently in cases of opinion evidence. For example in Holtzhauzen this is one of the reasons why the court excludes the evidence of one of the experts in that matter. So essentially the courts will often use that argument to basically say that the witness should not give evidence that essentially removes the courts functions, where the courts can make the decision on their own, they should do so. The courts are generally aware of the parameters of their powers. o This theory is often expressed ito the ultimate issue doctrine which essentially means that a witness may not or should not express an opinion on an issue that is ultimately supposed to be decided by the courts. o What type of difficulties do we think there are with this type of doctrine/theory? o The main one is that the theory doesn’t actually take into account that the courts will frequently receive opinion evidence on issues that the court themselves are supposed to decide. A good example of this is a case of drunk driving where the courts generally receive opinion evidence from both experts and lay persons regarding whether the person was driving under the influence. o The reason why the ultimate issue doctrine falls on its face is because it does not take into account that just because the court is accepting opinion evidence doesn’t mean that the court is bound by that opinion. The court is not obliged to adopt the opinion. The courts still have the responsibility to decide the matter, it will only place significant reliance on the opinion if it is satisfied that the reasons which the witness advanced for having formed that opinion are convincing and support that opinion. The point is that court has to make the final decision. o The same reasoning applies in an instance where a witness expresses an opinion which entails the conclusion of an application of law or the meaning of words or statutes. o Those are the reasons why this doctrine is ignored in practice and there are arguments that it should be abolished but you do still here it being mentioned in courts. o So the ultimate test for admissibility is whether the courts will appreciate help from the opinion and that’s the test that we need to keep in mind. o Go and read the section and answer the following question. Is the opinion evidence of an expert treated differently from the opinion evidence of a lay person in law? o Answer from the lecturer in the chatroom = “With regard to the question that was posed whether the opinion of a lay person or expert should be admissible. I think the opinion of an expert should have more weight attached to it, because they are regarded as experts in their particular field and could have knowledge that could shed light on the particular issue in question which should be admissible under certain circumstances?” o 2nd lecture from here - She has uploaded an updated class schedule for online learning - Re the class assignment – available from 6 May 80 Basic principles: Lay person v Expert Is this distinction necessary? The rules relating to the admissibility of both these types of evidence are the same, the ultimate test is whether the court will receive appreciable help from that evidence. The admissibility of such evidence does not depend on the distinction between lay persons and experts, the distinction is mainly done for convenience. But for procedural cases the distinction is NB because in civil cases, the party wanting to bring opinion evidence is required to give notice of their intention to rely on expert evidence. in criminal cases the prosecution is required on constitutional grounds to disclose opinion evidence to the accused prior to the commencement of the trial. Expert evidence will be readily received in issues including: Ballistics, forensic evidence, engineering, chemistry, accounting and psychiatry – these are highly specialised areas where the court cannot make a finding without an expert’s assistance Court may also consult an expert in relation to handwriting and intoxication (as seen in case law) (even though the court can make a finding on its own) Note principles in Ruto Flour Mills case (need not know facts of this case) Provides guidelines as to when court can receive evidence from evidence and when such evidence should be rejected Principles: o Supererogatory evidence is excluded simply because it is not needed: the court is as able as the witness to draw the conclusion. The evidence is not excluded because there is something objectionable regarding the reliability of the evidence. o The opinion of an expert is received because and whenever his skill is greater than that of the court. o The true criterion is whether the court can receive appreciable help from the opinion of the witness. o When the issue is one of science or skill the expert can be asked the very question which the court has to decide. S v Nel Court refused to hear psychiatric evidence that a witness was mildly retarded Reason for rejection was that the court itself was able to observe the mental capabilities of the witness itself – so would not have received appreciable help from allowing such evidence Expert Evidence General Rule o Inadmissible because it is irrelevant Principles: o Supererogatory evidence is excluded because it is not needed o Expert evidence is received whenever skill of expert is greater than the courts, and the expertise are needed. o Ruto Flour Mills (not prescribed) Case is useful in it provides guidelines for instances where the court can receive evidence from an expert and instances also where the evidence will be rejected The court laid out the following principles Supererogatory evidence is not excluded because there is something objectionable about its reliability regarding the evidence, the reason that a court would exclude supererogatory evidence is strictly because the evidence is not needed. • The court is as able as the witness to draw conclusions The opinion of an expert is received in instances where the expert has a greater skill than the court. If issue is one of science or skill, expert can be asked the very question which the court must then decide True criterion is whether the court can receive appreciable help from the opinion Confirmed S v Nel 81 • The court refused to hear psychiatric evidence that a defense witness who had contradicted aspects of the accused’s testimony was mildly retarded and therefore would have not held up in court under questioning. • The court said the reason for rejecting that evidence was simply that the court was able to see and identify the intellectual capacity or ability of the witness Court has considered expert opinions in matters relating to intoxication as well as hand writing (science or skill) Rejection of expert evidence o Court will generally reject any expert evidence that is pertaining to witness’s credibility o If an expert evidence starts to make findings relating to either of the parties then the expert is in fact taking the responsibility of the court and this will not be admissible. o Ruto Flour Mills Court rejected the evidence of a clinical psychologist affirming that the plaintiff in the matter had mentioned that she was raped in several interviews and hypnosis sessions The psychologist was saying that the witness had been telling the truth in court because she confirmed that this is what the witness had been saying in the sessions with the psychologist The psychologist was making a credibility finding and this was rejected by the court o Holthouzen v Roodt The reason for rejecting the evidence was because the evidence was given to usurp the court Evidence as to credibility will be rejected. However, there are cases where the court will generally accept expert evidence if the opinion is of a general nature. If it doesn’t relate to the credibility of the witness but rather to a general phenomenon of the witness. Refer to case summary set out two pages above. o SvM The court is not bound by the opinion of an expert Case Law Holtzhauzen v Roodt critique of W’s evidence: o See summary below SvM o Court is not bound by opinion of an expert – may deviate from it SvB o Dealt with DNA judgement o Will look at in second semester Expert witness must lay a foundation o Party seeking to adduce evidence of an expert must satisfy the court that the opinion is not supererogatory o Court must be satisfied that: (to assess if the opinion is necessary) Witness has specialist knowledge, training, skill or experience and can assist court in deciding a particular issue Witness is indeed an expert for the purposes for which they have been called Witness does not or will not express an opinion on hypothetical facts o These were outlined in the case of Mendy v Mohammed It is not enough for an expert to have only theoretical knowledge of particular issue, experience and practice is essential in that regard Need more than formal qualification to be considered an expert The court emphasised in this case that for the court to essentially decide that the witness has the necessary experience to express as a reliable witness, this is ultimately for the court to judge o Mohammed v Shaik: The court decides if the expert has necessary expertise and experience to express a reliable opinion 82 Reasons for opinion and probative value of opinion of the expert o Expert witnesses must support their opinions with valid reasons o Proper reasons will strengthen the probative value of the opinion o No hard-or-fast rules for giving reasons, and will generally depend on the facts of the case. o POD = opinion must give reasons and those reasons must be valid o What if court cannot follow the exact reasoning of the expert? Court will take into account if the expert has a good reputation, how skilled they are and how much experience they have. All these factors are important in taking the opinion into account if the evidence of the expert is to be relied on. Take into account that the expert opinion might be bias/possibility of bias As a general rule, experts are required to be impartial but the parties will generally call experts who will strengthen their argument for the case. Rule that experts are to be impartial doesn’t always work and quite often experts end up contradicting each other in court on the evidence. The courts will judge the quality of the information provided by the expert in determining admissibility. If the courts find for whatever reason that the evidence is lacking or if it is unsatisfactory, the courts will reject that evidence. The courts are always in the final position to determine whether the expert evidence should be accepted or rejected However, must be noted that the court does not take the decision to depart from the evidence of an expert lightly. Once an expert is called and they assert a particular point or opinion, the court will think heavily before deciding to depart from such evidence Especially in instances where the experts reasoning has not been disputed o SvM Experts can make mistakes so their opinions must be judged in light of the facts of the case and all the other evidence brought to the court. Experts are human and they can make mistakes o S V Venter The court confirmed that the reaction of the expert’s testimony was because the expert opinion contradicted the facts of the case and all of the other evidence Ultimately what this boils down to is that the opinion of the expert is only one piece of the evidence that the court has to take into account in light of all the other evidence o S v Van As Court more inclined to follow expert opinion evidence if the expert conducted her own experiments Hypothetical speculations are less likely to be taken seriously by the court and will be rejected. Courts focus on expediency. o Experts must be impartial Hearsay and expert opinion (dealt with in 2nd semester) o Expert not allowed to rely on or base their opinion on hearsay evidence (prohibited) o Question: Does an expert who relies on information contained in a textbook written by someone who is not called as witness provide expert evidence? Justify your answer. Information in a textbook is often researched information, so may go beyond being a mere opinion Research, such as information in a textbook, can be used as supplementation to the expert’s evidence/argument The Hollington rule o Question she likes to ask in assessments NB o Only need to know what she mentions here o What was held in Hollington v Hewthorn The earlier criminal convictions of a party are inadmissible for purposes of subsequent civil proceedings 83 The opinion of a previous tribunal is irrelevant The court is generally required to consider the issues before it without having regard to the opinion of a previous tribunal Rule we are still bound by (an English rule) She will mention the Hollington rule again in 2nd semester but just flag this and remember. Procedural aspects o Question: Please outline the procedures that must be followed before an expert witness is called in both civil and criminal matters respectively Rule 24(9) of the Magistrates’ Court No person shall, save with the leave of the court or the consent of the parties to the suit, be entitled to call expert evidence unless he/she shall Not less than 15 days before the hearing, have delivered notice of his/her intention to do so; and Not less than 10 days before the hearing, have delivered a summary of such opinions of such expert and his/her reason therefor. rule 36(9) of the Uniform rules of court No person shall, save with the leave of the court or the consent of all parties to the suit, be entitled to call expert evidence upon any matter unless he shall Not less than 15 days before the hearing, have delivered notice of his intention to do so; and Not less than 10 days before the trial, have delivered a summary of such expert’s opinion and his reasons therefor o Question: please indicate whether an expert is allowed to give evidence by way of affidavit in both criminal and civil matters Expert evidence by way of affidavit or certificate The opinion of a lay person • She wants us to read the Holtzhausen case • Lay person may express an opinion on: • the approximate age of a person, • the state of sobriety or a person, • the general condition of a thing, and • approximate speed at which a vehicle was traveling. • These are examples and this is not an exhaustive list. • That is why the opinion evidence of a lay person is admitted, because it provides appreciable assistance. • The Inability of a person to provide reasons affects the weight of the evidence, not its admissibility. • When giving opinion evidence the courts will often face a difficulty of distinguishing facts and opinions, so courts generally don’t make that distinction. • The compendious mode • The witness is allowed to give an opinion as a brief summary of the factual information. One of the reasons this is allowed is to give the witness an opportunity to testify fully, what they perceived in the moment. It’s also allowed for practical convenience. The lay person is in a better position than the court to form an opinion on what happened. • The witness is allowed to be cross examined. Whether or not the court excludes evidence given in compendious mode is at the courts discretion. • Handwriting • ITO s4 CPEA and s228 CPA there is a provision that basically says that a lay person and an expert are both allowed to express an opinion on handwriting. • Probative value of law opinion 84 • • • The evidence of a layperson provides prima facie evidence and if it is not challenged a court may accept it, if that evidence is challenged and there are issues they might require further evidence. The courts will generally when deciding whether to accept the unchallenged evidence of a lay person, the court will largely consider the reasons of the witness in support of his/her conclusion. Holtzhauzen v Roodt 1997 4 SA 766 (W) • An NB case because it summarises certain rules about expert witnesses, the admissibility of evidence and the factors that the court will take into account. • Questions • Briefly explain why Satchwell J refused to admit the evidence of Mr Wilkinsons. • The defendant sought to bring the evidence of 2 expert witnesses and the court basically had to consider whether to allow that evidence and advanced NB reasons why they refused the evidence of one witness and accepted the other Holtzhauzen v Roodt 1997 4 SA 766 (W) (short summary of the case) Facts: - This case concerned the admissibility of the opinion evidence of expert witnesses. - In this case the plaintiff (H) sued the defendant (R) for defamation arising out of the alleged publication by the defendant of a statement that she had been raped by the plaintiff whilst they were together on his farm. - The defendant gave notice in terms of Rule 39(9) of the Uniform Rules of Court of her intention to call two expert witnesses, W and B, to testify. - W is a clinical psychologist, and a hypnotist and he would testify that the defendant had consulted him on a number of occasions and had told him that she had been raped by the plaintiff. W's opinion was that the defendant was telling the truth about the relevant incident. – note that PCS is usually inadmissible because it only shows consistency, not proof; this evidence also aimed to prove the credibility of the plaintiff – evidence was rejected B, a psychologist and rape counsellor would testify that women who had been raped would not often reveal the incident to third parties immediately after it had occurred and that it was common for such victims to exhibit radical changes in behaviour – this evidence was accepted by the court; rape is a topic that the court lacks experience in so B’s evidence gave useful insight on the matter; judge said that it would be irresponsible of the court to draw an inference from the failure to report immediately without the assistance of an expert - The plaintiff opposed the admission of the evidence of W and B, contending that, firstly, W's evidence usurped the function of the Court and was evidence of the content of a previous consistent statement; and, secondly, that B's evidence was of a general nature as B had had no consultation or discussion with the defendant, and that the evidence was not relevant. Ratio: - Satchwell J held that W’s evidence was irrelevant and therefore inadmissible. Saying that the defendant’s prior statements to W added “no greater weight to that which she was telling the Court” and despite that irrelevance it would also displace the value judgment and fact finding responsibility of the Court. The circumstances in which the statements were made to W, ie: that they were made subsequent to the initiation of litigation removes them even further from the realm of admissible evidence. There is also the well-known principle that litigants are entitled to have their disputes settled by judges and not by witnesses. Allowing the evidence would lead to various issues relating to whether statements made under hypnosis are reliable, is it scientifically acceptable etc. - The evidence of the other expert B was held to be admissible. Bs opinion was of a general nature and unlike Ws opinion it did not involve an opinion on the credibility of the defendant, and B also had no personal interviews with the defendant. - The judge said that the value which he will attach to such evidence will fall to be assessed in light of all the evidence before the court. The guidance and opinion of B will merely be one pointer for assistance - Thus the evidence of B was allowed as an expert witness and not W. 85 2.5 Previous Consistent Statements Prescribed: S v T, Holtzhauzen v Roodt, S v Cornick Ch.9 textbook Introduction • Definition • A written or oral statement made by a witness prior to testifying and which corresponds with or is substantially similar to his/her testimony in court • Examples • Where a witness testifies that she made an oral or written statement before testifying, that is consistent with her evidence in court – statement outside of court is the previous consistent statement • Houltthozen • Where a witness brings a psychologist or seeks to bring a psychologist to testify that she made similar statements during a counselling session or under hypnosis. • General Rule? POD • Such statements are inadmissible because they are irrelevant • Don’t prove the truth of a statement – they can only prove consistency • Why is a Previous Consistent Statement (PCS) irrelevant? • Simply because the only thing they prove is that the witness made a statement, they do not prove the truth of the witness’s statement • Repeating the same statement doesn’t necessarily make it true (a lie can be told as many times as a truth can) • PCS have limited probative value • Rationale for excluding PCS • If they were included, it would mean that a witness could in theory generate their own evidence • Prevent the risk of fabrication of evidence 86 • • Proving them is time consuming and causes collateral issues Rule on previous inconsistent statements • Evidence of a previous inconsistent statement is admissible because it can be used to create credibility • Showing that a person has been saying something inconsistently in the past speaks to their credibility now. • Inconsistent statements are relevant and therefore admissible Exceptions Please note that ALL the exceptions to the general rule on previous consistent statements form a closed list. Refreshing the memory of the witness A witness is allowed to consult a PCS to refresh their memory in the witness box Two things can happen after the witness consults previous statements (NB often Test/Exam) • Previous recollection revived (reviving the memory of the witness) • Situation where the witness uses a previous statement to trigger their memory and then is able to continue testifying orally • The PCS is not admitted because it carries no probative value (merely used to trigger memory) • The oral statement is then favoured and admitted because the witness can remember and therefore testify orally in court, which can be cross-examined on this testimony. • Past recollection recorded • Situation where a witness, after having read their previous statement, is unable to recall the events. • In such instances, the PCS is admitted because in affect there is no oral evidence and the witness struggled to remember the previous statement on the matter Section 213 of the CPA • Ito this section - a witness’ statement, not an accused’s statement, can be proved by consent and the witness need not testify • Basically = S213 allows for a written statement made by a witness to be admitted in court with the consent of the person. • That person will then not need to testify in court but are instances where they might be called upon to testify orally after the statement has been proved by consent. • If that witness is later called to testify, the PCS used ito of s213, will merely be used to show consistency Questions: Read s 213 of the CPA and answer the following questions: a. What requirements must be met for such a s 213 statement to be admitted? b. What must the accused do if he objects to the statement being tendered in evidence? Section 213 of the CPA 213 Proof of written statement by consent (1) In criminal proceedings a written statement by any person, other than an accused at such proceedings, shall, subject to the provisions of subsection (2), be admissible as evidence to the same extent as oral evidence to the same effect by such person. (2) (a) The statement shall purport to be signed by the person who made it, and shall contain a declaration by such person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or which he did not believe to be true. (b) If the person who makes the statement cannot read it, it shall be read to him before he signs it, and an endorsement shall be made thereon by the person who so read the statement to the effect that it was so read. (c) A copy of the statement, together with a copy of any document referred to in the statement as an exhibit, or with such information as may be necessary in order to enable the party on whom it is served to inspect such document or a copy thereof, shall, before the date on which the document is to be tendered in 87 evidence, be served on each of the other parties to the proceedings, and any such party may, at least two days before the commencement of the proceedings, object to the statement being tendered in evidence under this section. (d) If a party objects under paragraph (c) that the statement in question be tendered in evidence, the statement shall not, but subject to the provisions of paragraph (e), be admissible as evidence under this section. (e) If a party does not object under paragraph (c) or if the parties agree before or during the proceedings in question that the statement may be so tendered, the statement may, upon the mere production thereof at such proceedings, be admitted as evidence in the proceedings. (f) When the documents referred to in paragraph (c) are served on an accused, the documents shall be accompanied by a written notification in which the accused is informed that the statement in question will be tendered in evidence at his trial in lieu of the State calling as a witness the person who made the statement but that such statement shall not without the consent of the accused be so tendered in evidence if he notifies the prosecutor concerned, at least two days before the commencement of the proceedings, that he objects to the statement so being tendered in evidence. Part VI of the Civil Proceedings Evidence Act • Applies to civil and criminal matters • Allows a witness to hand in signed statements made by them after the incident under investigation • Witness must still also give oral evidence • Statement is not used to show corroboration – used to show consistency • These circumstances in which this part VI applies, would be for example, if a witness had personal knowledge of the facts or if they recorded the information as part of their duty and they are later called to testify in court. Res gestae • PCS is admissible if the facts form part of the background to an issue (give a fuller account of the matter at hand) • If it is simply outlining and creating background to an issue, it will be admissible. • Rule against self-corroboration • PCS not used show corroboration • Statement cannot be used to prove the truth of the witness’s statement To rebut an allegation of recent fabrication • If it is suggested in court, whether by implication or directly, that the witness has fabricated their evidence, then the witness may rebut that suggestion by showing that prior to this time he had made a previous oral or written statement that is consistent with that evidence given in court. • Applied to allegations of direct and implied fabrications that the witness is fabricating their evidence • PCS is allowed to show consistency – not truth of statement or to corroborate evidence • That is why it is held to be relevant and admissible • May be used to rebut attack on credibility Identification • Dock identification (evidence that is done in court) has little probative value and weight (will discuss this in greater detail in 2nd semester) • Prior identification (evidence that is done outside of the court) carries more weight and this is because such evidence is relevant because it shows the witness has from the beginning been consistent regarding the issue/person called into question. • The witness is not identifying the person in the court for the first time, so the prior identification evidence carries weight because it shows consistency. • Important thing is that the rules regarding identification parades must be followed • Essentially what the rules indicate is that identification evidence must be approached with caution by the courts • When the courts evaluate this identification evidence it must apply the cautionary rule. Statement made at arrest or on discovery of incriminating articles • Lecturer did not discuss 88 • To show consistency Sexual Offences The common-law Rule • The complaint of the victim [survivor] is admissible as an exception to the general rule excluding PCS • Evidence may be given of a voluntary complaint made by the victim within a reasonable time after the commission of the alleged sexual offence • May be given in court provided that meets with requirements (see below) • The common law requirement that the complaint must have been made at the first reasonable opportunity is heavily critiqued What was the critique in the Holthauzen case? • The complainant of rape had to “raise the hue and cry” • Required of victim to make indication that the matter had happened • Must have made a complaint • Shaped by this idea • Common law position is applied ito section 191 of CPA (30th May 1961 position) • Also applied ito S58 & 59 Sexual Offences and Related Matters Amendment Act 2007 (SORMA) • The common-law Requirements • The complaint must have been voluntary • The complainant must testify • The complaint must have been made at the first reasonable opportunity • The complainant must have been a victim of a sexual offence • The complaint can only be admitted for the limited purpose of proving consistency. • Criticisms? • Challenges with this position – has been subject to criticism • It does not have rational basis – could prejudice complainant • Doesn’t take into account that we have research that proves that silence is a frequent aspect of PTSD after rape • Respond with silence rather than “hue and cry” • In the absence of complaint made within reasonable time – the court may question credibility of victim • The courts could draw inference from inability in what is considered reasonable period • How has the rule changed? • Gender neutral • Applies to both male and female • No longer confined to sexual crimes where absence of consent is essential elements • Reasonable time requirement is no longer fatal to prosecution • CL position evolved to accommodate realities of sexual offences • Criminal Law (Sexual Offences and Related matters) Amendment Act (SORMA) • Made recommendations which culminated in S58 and 59 in SORMA to address the issue • 58 Evidence of previous consistent statements • Evidence relating to previous consistent statements by a complainant shall be admissible in criminal proceedings involving the alleged commission of a sexual offence: Provided that the court may not draw any inference only from the absence of such previous consistent statements • Clears up the criticism raised above • 59 Evidence of delay in reporting • In criminal proceedings involving the alleged commission of a sexual offence, the court may not draw any inference only from the length of any delay between the alleged commission of such offence and the reporting thereof • Giving courts heads up – if there’s been a delay, the court is not allowed to draw negative inference from this delay • Ask yourselves: Have these provisions amended the CL position? • Common law Position irt ss 58 & 59 • 1. The complaint must be voluntary • Targeted as excluding info as result of a question or cross examination • Not as a result of leading or suggestive questions or intimidation – will be excluded 89 • • Intimidation • SvT • • Example of how a statement made as a result of intimidation was excluded 11 yo who had alleged her stepfather had raped her – made complaint to mother • The complaint was elicited by a threat of violence to get her to admit the info • Court held the complaint was inadmissible • Criticism: • Court didn’t account for fact that the 11 yo had not reported to mother because she was afraid the accused would kill her and family if she admitted the info • Court has to take into account nature and circumstances when applying the rule of voluntariness of statement • Especially children – easily manipulated • Leading questions • Courts have a discretion as to whether or not will admit complaint made in response to leading question • Consider age, relationship, whether inquiry was neutral • Do sections 58 and 59 change common law position? • Intimidation: shall be admissible in S58 must be read subject to CL requirement of voluntariness • Complaint obtained aro violence, threat of violence would therefore be unreliable as lacks prohibitive value – be held to be inadmissible • S58 excludes complaints elicited bmo leading question bc these would lack prohibitive value and doesn’t prove consistency • S58 therefore doesn’t change CL re leading questions, but keep in mind similar to CL it is still within the discretion of court to decide whether to admit the statement • NB: circumstances of case, was it a neutral inquiry and the position of the person being questioned! 2. The complainant must testify in court • To prove consistency • This is bc PCS are used to prove consistency – cannot achieve this if they don’t testify in court • Failure: could lead to conclusion that complaint is inadmissible • Exception: • SvR • 56 yo woman who had allegedly been raped in ambulance whilst being taken to nursing home • Accused had said that the woman had consented • Upon arriving at nursing home had complained to many people that she had been raped • Later in trial: she was unable to recall what had happened (was an alcoholic and suffered from amnesia) • Couldn’t confirm her PCS • Court admitted her previous statements even though she did not affirm them in court during testimony • PCS used not to show consistency but to show state of mind of complainant at time when she made the previous statement • Showed she could not have consented to the act • Court really taking in consideration her mental state of mind • Keep in mind the general rule is that must testify in court • Do sections 58 and 59 change common law position? • PCS still admissible in context such as S v R • Mental incapacity meant could not testify in court • These provisions retain the common-law role that must testify in court 90 • • Complainant must testify – why? • Reason being that PCS cannot prove consistency unless complainant testifies in court The complaint must have been made at the first reasonable opportunity • Depends on the absence or presence of a person for victim to complain to • + whether complainant understood the immoral nature of the act against them • This has caused much controversy • S58 & 59 have mostly impacted this requirement • Problems with common law position? • It goes against the knowledge that we have that victims of sexual offences that generally do not report the instances immediately • Normal for complainant who has suffered such an offence to not report it immediately, even at all • Holtzhauzen v Roodt • Discussed previously • Silence as an outcome of PTSD • Court had to admit evidence of expert to confirm that it is normal for victim to not report offence immediately • SvS • Court highlighted the importance of considering the issue from child’s perspective • Children – court emphasis the importance of general behavior of children as well as the circumstances they are in • Did not report it at school where it happened • Only reported it later in the day at home – she felt safer and more comfortable • Also highlighted how child might misunderstand the situation (she did not report that she was raped but rather was touched) • S v Cornick • Lewis J • The absence of report within reasonable time has to be taken in context • The surroundings of child, how it happened etc. • The rape of the victim, although happened 19 years ago, was admitted • The complainant encountered the accused in the future which triggered the reporting of the event • Accused tried to argue that she would have told her mother or grandmother 19 years ago when it happened • The complainant had given plausible explanations as why did not report it at first reasonable instance • She was raised by elderly and conservative parents – no discussion of intimacy • Young person who had never boyfriend at the time, no exposure to these kinds of situations before with her guardians therefore uncomfortable to discuss with them • Distant relationship with mother • Therefore, would make sense why did not report to them at the time • Complainant may not have been aware that was being hurt at the time • Maybe even aware of hurt, but not aware of rape • The way that rape instances occur, the period the child is in, they don’t know what is being done to them • She comments on the Michael Jackson molestation • When children are harmed, they often don’t know what’s being done to them • Courts will take this into account: the general behaviour of children and the context which the incident takes place • Do sections 58 and 59 change common law position? 91 • • • S191: admissibility of evidence is taken into consideration ito CL – therefore the CL still applies • These sections don’t abolish PCS as a whole, but rather that these sections must be interpreted of doing away with requirement that must be reported at first reasonable instance • Requirement is abolished – interpretation of sections • Emphasis no longer on admissibility of compliant but on inference that can be drawn in assessing credibility of complainant • Caters for the view that complainants generally do not report at the first instance • For example, court cannot draw negative inference from delay in commentary – therefore renders the first reasonable instance requirement irrelevant • Evidence of multiple complaints allowed – but must be relevant • There have been criticisms that this opens a floodgate for the admission of series of complaints made by complaint to various people • Could prolong trial, collateral issues • S58 & 59 don’t abolish the rule that PCS must serve to prove consistency – this is still the guiding principle amongst PCS • Consistency = NB (refer to last requirement) The complainant must have been a victim of a sexual offence • Common law position: must be a victim and the act of violence • Concept of victim now includes those without capacity to consent included but who did not have legal capacity to take part (children, mental illness etc.) • SORMA definition: concept victim extended, as well as the definition of sexual offence • Expansion of definition The complaint can only be admitted to show consistency • Not to prove truth of statement or corroborate victim • Evidence of condition of the complainant admissible? • Admissible in Exceptional instances where condition of complainant at the time made it can serve as corroboration • E.g. if she was extremely shocked when made complaint – S v R, although she could not recall (mental incapacity to do so) her condition at time of reporting the matter was evidence of corroboration, she could not have consented to the offence committed against her • Courts must be very cautious when making this exception – complaint was acting or reacting to something else at the time • Sections 58 and 59 do not alter this position • Do not alter this CL requirement that the PCS must show only consistency Question: Do you think that the legislative’s interference in the inferential process conducted by the courts encourages intellectual dishonesty or unjustifiably favours the prosecution? - S58 & 59 make clear instances where court can make inference, draw discretion etc. - S58: the court is allowed to admit evidence of PCS, only done if court does not draw inference from absence of such statement - S59: court may not draw any inference from the length of delay between alleged commission of offence and reporting thereof - Legislature is very intentional with using the word only etc. - In line with general rule of evidence that court must consider evidence in totality, not in piece fashion o Some scholars (Paizes) show issues with how curt draws inferenced: the provisions encourage intellectual dishonest bc courts will find other reasons to draw negative inference which would have drawn in any case - There is criticism against the courts interfering with the court’s inferential process - Think about it for yourself: o 92 SECTION 3: THE EXCLUSION OF RELEVANT EVIDENCE 3.1 Private Privilege Prescribed: S v Mushimba, S v Lwane, S v Safatsa Ch.10 Textbook (Pg 100 of textbook – refers to the incorrect case, don’t know how to spell it. Something about flower mills but they meant something else?) Privilege Refers to when a witness is not obliged to answer a question or provide relevant info to the court In such a case, a court may be deprived of relevant information Two main instances: privilege and uncost obtained evidence Distinguish btwn private and state privilege Private aimed at protecting interests of individuals, versus state privilege protects interests of the state Private privilege Protecting interests of individuals, person not obliged to answer a question, may refuse to answer in court and because of this the court is deprived of relevant information Because the court is deprived of info, very few instances recognized Distinguish between privilege, competence and compellability - Competence – capacity to testify. Incompetent witness doesn’t have capacity to testify eg under age. - A compellable witness can be compelled to testify - Non-compellability right to refuse to testify at all. Can refuse to enter the witness box. NB to note, also have those who can claim privilege. - Privilege witness can refuse to answer certain questions in court or provide the court with certain information that is protected by privilege But they are still required to enter the witness box. Only arises once they testify. Can choose to refuse to provide info - Difference between non-compellable witness and a witness who claims privilege – non-compellable witness can choose to refuse altogether to enter box. NB distinction to know - Can waive right to claim privilege, but they have to be aware of the right to validly waive it Going to look at: - Privilege against self incrimination - Professional privilege - Marital privilege - Parent- child privilege Privilege against self-incrimination Focus on what’s discussed in recordings NB for exam Against self-incrimination - Fundamental right. Witnesses and accused are protected - Right that prohibits person to be compelled to give evidence that incriminates him or her - Protected by const. s35(3)(j) and legislation – section 14 of the CPEA and sections 203, 217 and 219A of the CPA - Reinforced by right to remain silent and right to legal representation - Rationale? 93 Presumption of innocence – places the burden on the prosecution to prove guilt beyond reasonable doubt, means its not the duty of the accused to help the state prove its case Founded on the idea that persons aren’t compelled to give evidence that expose them to criminal punishment, this goes against the right to dignity and privacy Guards against bad police practices. If accused persons weren’t protected, this would mean the police could abuse people’s rights in order to obtain evidence Encourages people to testify, bc they might be reluctant if they’re worried, they would be forced to give incriminating evidence. The accused - Look at all three stages. Pre-trial, bail and trail proceedings - Underlying principle: it is a consequence of the presumption of innocence, right to remain silent etc. all rights that are used as mechanisms to protect the privilege against self-incrimination - How does it protect accused at pre-trial? Common law recognised the rule that a person shouldn’t be required to give info that would incriminate them, but courts often dismissed this in the past. Found that a failure to inform of an accused of rights didn’t render the incriminating statement inadmissible. Changed with the constitution Section 35(5) – unconstitutionally obtained evidence must be excluded. Approach in SA mirrors the USA. Miranda rights mentioned in US TV. Miranda rights are basically what we also follow. Require that an accused person must be warned of their rights and the consequences and the right to have legal rep, all aimed at protecting their privilege against self incrimination NB to protect before trial begins bc a lot of abuses can take place before trial begins. Section 35 of the Constitution distinguishes between arrested, detained and accused persons – leads to anomalies eg. Detained person has the right to consult with a legal practitioner but not informed of right to remain silent. Or arrested person must be advised of their right to remain silent, but doesn’t say they must be advised on right to consult a legal practitioner Little emphasis on differences above though, policy and logic determine that s35 must be read to give the legal right to legal rep etc to arrested and detained persons, confirmed by section 73 CPA – right to consult a legal rep and to be advised of it for both accused and detained persons. Section 35(5) also has the effect of producing uncertainty bc privilege is only specified in relation to accused person during the trial itself. Only specified in relation to a fair trial, trial stage. But also important that its applied before the trial. But this distinction also carries little significance because there is authority for the view that the right to a fair trial doesn’t begin only once the criminal process has started. S v Melani – purpose of the right to legal rep and to be informed of it is to protect the right to remain silent and the privilege against selfincrimination. Main points from S v Melani – privilege against self-incrimination (and right to a fair trial) exists from the inception of the criminal process. Starts on arrest, right until the trial. This has to do with the need to ensure that an accused is treated fairly in the entire criminal process. Also protects accused persons before trial, but question as to whether or not this extends to suspects? S v Sebejan described a suspect as someone with whom there is some type of apprehension, may be implicated in offence, or version of events is mistrusted. Held that the right to a fair trial operates at the investigative stage of the criminal process, suspects also entitled to the same warnings. NB HC decision, no CC finding on this but other cases followed this or found the opposite that they didn’t apply. If asked this know case and the fact that the court extended it and it is only HC judgement and some have gone against this. consider the constitution, highly likely that the right would be extended if the CC heard it because the nature of our law which seeks to protect people. Conflicting views on whether or not it is necessary to advise a person of their section 35 rights throughout the pre-trial state. Constantly remind them?? Most pragmatic is to ask whether the accused after having been informed of her rights on arrest was in a position to decide voluntarily how to exercise those rights at each subsequent state of the pre-trial procedure. Also detained persons need to be informed of their right to remain silent and privilege etc. - Does it apply to ascertainment of bodily features? 94 Can police compel person to give fingerprints? NB point – the privilege against self-incrimination only applies to testimonial utterances, meaning it only applies to oral utterances. Rex v mathamba. NB to know this and understand it. Doesn’t apply to real evidence or bodily features Person can be compelled to give evidence of bodily features even if it incriminates them – CPA section 36A, 36B, 36C and section 37 – police can take fingerprints and body prints of any person who is suspected of committing a crime or who has been arrested, charged or convicted Police authorised to take steps that are necessary to ascertain if a person’s body has any mark, characteristic or distinguishing feature or shows any condition or appearance eg accused was stabbed on their arm, then the police can ask to see their arm to see if there is a mark or whatever. Include things like voice, handwriting samples, blood samples. Not allowed to compel them to give blood but med practitioners may ask arrested persons for blood samples. Illustrates that privilege against self-incrimination doesn’t extend to bodily features. Not going to do case law in detail – none of them are prescribed. S V Huma – taking of fingerprints doesn’t constitute testimonial utterances and therefore was not protected by the privilege against self-incrimination. Confirmed by SCA in la vec v regional magistrate (don’t know how to spell it, wasn’t on the slides). Only applies to testimonial utterances NB confirmed. But conflicting HC judgements for this – involve more drastic measures of ascertaining bodily features. One thing to say they must give fingerprints/see if they have a mark but different to say someone must submit to an operation to extract a bullet. HC judgements have differed here. Xaba I think?? Again, nothing on the slides in this case they said removal of a bullet from a person’s body didn’t infringe privilege against self-incrimination, but a Xaba disagreed. I think mixed these up but I couldn’t hear what case names she was saying. 2021: She ended here then uploaded work on Hearsay? Only up till here for TEST 2 - Bail proceedings Not a lot of detail, main thing to know is that when accused give evidence in a bail application, he is still protected by the privilege against self incrimination, doesn’t have to give info which would incriminate him. Even if he wants to testify, he can decline to answer any question that would lead to incrimination. But difficult choice bc if he chooses not to testify or refuses to answer certain questions, he risks not getting bail – runs risk of bail being refused Constitutional challenges – s v Dlamini, s v Dladla, s v Joubert, s v Schietekat issue was constitutionality of section 60(11B)(c) of the CPA which provides that the record of bail proceedings forms part of record of subsequent trial. Whatever evidence they give during bail proceedings will form part of the record of the subsequent trial. If accused testifies, the record can be used during the trial. Court must inform the accused of the fact that anything he says during his bail proceedings may be used against him if the evidence becomes admissible. Const challenge was based on the fact that the subsection infringed on the privilege against self-incrimination. Main arguments put forward argued that the section is unconst bc of the fact that it compels the accused to adduce evidence if he wants to be released on bail, and the effects of this provision would be that the accused would be compelled to give evidence even if the evidence incriminates him. Bit of a stretch. (this was in the Schietekat case) In Dlamini and Dladla cases argued that it is in the interest of a fair trial that the accused shouldn’t be compelled to choose between his right to bail and his privilege against self incrimination because the effects of section 60 is that the accused may have to choose between obtaining bail and protecting his privilege. Court dismissed both arguments, held that section 60 didn’t compel the accused to do anything. Not forced to choose. All it does is require the accused to make a difficult decision to either withhold or give information to get bail or not. Therefore not unconst, evidence contained in bail record would be excluded if the 95 trial court found that admitting the record would render the trial unfair. And section 35 of const, court has discretion to decide if certain evidence would render the trial unfair, and in this instance the court has the discretion to decide whether the inclusion of the bail proceeding would render the trial unfair. Confirmed in s v Basson - Protection during trial Right to remain silent presents challenges – this is the focus Think about if you think the court should be able to draw a negative inference from an accused decision not to testify a trial Answer isn’t as clear – on the one hand, because of the right to remain silent, a person shouldn’t be penalised for exercising their right to remain silent at trial, and can argue that a court shouldn’t draw a negative inference from this decision. Basic level. But challenge bc there is a common law rule that if the state makes a prima facie case and the accused hasn’t given an explanation/defence against it then the court is allowed to make a finding against the accused on that basis present a bit of a challenge. Some cases (again she mentions cases but the names aren’t on the slides so i don’t know how to spell them lolol) s v Mtetwa, and s v Snyman where it was held that in certain circumstances, an accused’s refusal to testify when the prosecution has established a prima facie case could be a factor in assessing guilt accused has a right to remain silent but if the state makes a prima facie case the court may consider the refusal to testify. Con court hasn’t ruled expressly on whether a negative inference can be drawn from silence at trial. But the con court has pronounced that trial silence may have this unfortunate consequence if the accused refuses to provide an explanation after the prosecution has made a prima facie case S v Thebus con court said that if there is evidence that requires a response and if no response is given, the court may be justified in concluding that the evidence is sufficient to prove the guilt of the accused. Precise nature of the negative consequence of remaining silent at trail is unclear, because we still don’t know whether the trial silence becomes at item of evidence or doesn’t the fact that the accused chooses not to testify at trail become an unavoidable consequence when the court makes its evaluation? Does the silence lead to this unavoidable consequence? Basically, on the one hand the accused has the right to remain silent, but have to keep in mind that at common law, once the state makes a prima facie case, then the court is allowed to, in the absence of an explanation, use the lack of testimony as a factor that influences its decision when it assesses guilt Failure of presiding officer to advise an accused of his right to legal rep will lead to the infringement of a right to a fair trial and therefore the exclusion of that evidence. Accused does have a right to legal rep at state expense Witnesses in criminal proceedings - Section 203 of CPA extends protection to witnesses – witness may refuse to answer if it would expose him to criminal charge, but only applies to criminal charges. Doesn’t extend to not answering questions on the basis of a fear that the evidence could give rise to a civil claim - Presiding officer must warn witness of right – failure to do so means evidence is inadmissible in a prosecution against the witness. Affirmed in s v Lwane Appellant who had been a complainant in an earlier hearing, gave evidence against a fellow thief and a murderer who had shot him. Confessed to participating in a murder and he was charged based on this Appeal – held that this testimony was inadmissible because he had been ignorant of his right to decline to answer questions that would incriminate him Had not been warned of his rights, therefore inadmissible. - Extent of 203 is modified by the terms of section 204 indemnifies an accomplice who testifies against a co-offender as a state witness. The aim of section 204 is to encourage accomplices to testify for the state. Provides that whenever the prosecution informs the court that a witness will be required to answer self-incriminating questions with regards to an offence, the court must inform the competent witness that she is obliged to give evidence and answer the incriminating questions. But the witness will give this evidence on the condition that they will be indemnified. If the witness testifies honestly, then they will be discharged from the prosecution, but if not honestly then the 96 discharge will be refused. However, the witness will still enjoy a degree of protection in that the evidence they give will be inadmissible at any trial in respect of the specified offence. Witness in civil proceedings - Sections 14 and 42 CPEA allow a witness to claim privilege in respect of questions that would expose them to criminal liability or a penalty or forfeiture - Wider scope of privilege because it doesn’t only extend to criminal charge but also exposure to penalty or forfeiture. NB to know that privilege in civil proceedings is wider, not only tied to self incrimination in relation to a criminal charge - Keep in mind, there are also other sections that provide for the interrogation of people outside of the criminal process eg. Section 65 of the insolvency act, section 415 of the companies act authorise designated officials to compel people to appear before them to answer questions and those questions may be incriminating. Question becomes whether or not a person who testifies under these acts is protected by section 35 even though the const doesn’t expressly provide for it. The answer is if a person who is questioned in terms of a statutory enactment is subsequently charged criminally, then the prosecution who seeks to use their evidence obtained would have to keep in mind that that person is protected by section 35(3) of the constitution Professional privilege - Only pertains to the lawyer-client relationship - We only recognise legal professional privilege why do you think this is? Do you agree with the rationale? Should it extend to other important professional relationships in society (such as doctor an patient)? - Rational for protecting legal professional privilege: Primary reason for this is because it is believed that it is in the interests of the administration of justice to ensure that all relevant evidence is before the court. “relevant” if the communication between doctor and patient is relevant then it should be brought before the court. - In the textbook there is a discussion about the ways in which other professionals could argue in favour of protection eg. Right to privacy. Look at discussion in textbook Legal professional privilege - In criminal and civil proceedings, the communications between lawyer and client are privileged and so they cannot be disclosed without the client’s consent - Rationale – people need lawyers, if lawyers are to provide adequate assistance to their clients, then they have to be able to communicate with them freely. Concern is that If it’s not recognised then clients won’t feel as free to communicate, could hinder the administration of justice bc lawyers could give clients the wrong advice because they don’t have access to all the facts. - S v Safatsa Recognised for the first time as a fundamental right that is derived from our requirements of procedural justice But keep in mind, a breach of this doesn’t render the trial unfair automatically - Have a look at the textbook and the four requirements for legal professional privilege and briefly explain what they entail. Don’t have to discuss case law in this regard, just need to list the four requirements for LPP to exist and explain what they entail - List and briefly explain the four requirements for legal professional privilege: Requirements for legal prof privilege – all questions of fact 1. The communication must have been made to a legal advisor who is acting in a professional capacity – can be inferred that this is present when the client has paid a fee. Covers legal advisors, advocates etc. 2. Must have been made in confidence – also question of fact, rebuttable inference of confidentiality where it is proved that a legal advisor was consulted in a professional capacity 3. Must have been sought for the purpose of obtaining legal advice – doesn’t need to be a connection to actual pending litigation for the privilege to be attached to the communication 4. Client must claim the privilege – court cant uphold privilege unless client or legal rep has claimed it - May be waived by a client. But they must know of the existence of the right in order to waive it. Can be expressly, impliedly or imputably, and if this is done then the legal rep will be bound by the waiver. Martial privilege and child privilege Discrepancy in our law because it reflects an odd way of viewing relationships, shows how we value marriage differently to relationship between a parent and child. 97 Marital privilege - (Question often asked as an opinion) - In SA we recognise marital privilege, means that spouses are entitled to refuse to disclose communication that they made to each other during the marriage. - Requirements: the communication must have been made whilst the spouses were married, and the privilege persists after divorce with regards to communication that was made while the couple was still married. Parental privilege - Section 192 CPA provides that a parent or guardian can be compelled to testify against their children and vice versa - Prevails even where the parent attends criminal proceedings in order to provide assistance to the child in terms of section 73 of the CPA - Consider this she says why marital but not parent. Think about what your views are. Should have an opinion on this, might ask in assessment - S v M section 73(1) and 73(2) of the CPA read together give the right to a child to be assessed by a parent or guardian from the time of arrest. Court held that when a parent or guardian is providing assistance in terms of this section, the parent is acting in the same way as a lawyer would provide assistance to their client. Based on this the court held that there is a logical inference that can be drawn that the communications between the parent and child in this regard should actually be afforded the same privilege as a legal representative and their client - Consider this, lecturer says this is the correct approach. But also consider the fact that there are instances where its not necessarily the parent who is having to testify against their child, but sometimes also child against parent and in those instances the child might be testifying against an abusive parent, might be in the interests of justice that the child doesn’t have privilege in order for the child to be able to freely give evidence in respect of a parent who might be abusive. Consider this from the perspective of the fact that when it comes to parent child privilege, it is just as much in the interests of justice that a parent be able to protect their child, but also that the child be able to testify against a potentially abusive parent 3.2 State Privilege Prescribed: Swanepoel v Minister van Veiligheid en Sekuriteit, Els v Minister of S&S, McCray v Illinois, Roviaro v United States, Panayiotou v S and Others Ch.11 Textbook Focus on core principles and for now pls use slides as the lecture notes bc cant get the textbook for this Common law rule that allows the state to assert that information in its possession is privileged from disclosure in court on the basis that it would be against public policy or the public interest to disclose such information Regulated by section 202 of the CPA and s42 CPEA Reason: states in the past used to be concerned with national security, secrecy, diplomacy during war etc. more of an issue than right now. But they are still relevant Diff btwn private and state privilge: - Similarity is that they both have a public interest element. Aspect of it that protects the general public interest - State privilege in essence is public interest - Private has an individual autonomy element to it. More to do with protecting individual interests - Difference in that re. private, in those instances circumstantial evidence can be used to prove something. Indirect evidence can be used to prove the issue eg if the wife of an accused doesn’t want to disclose what type of gun her husband bought, other circumstantial evidence can be used to establish that eg bank statements, visit to a store etc. – different to state. Circumstantial evidence is prohibited where state privilege has been claimed. If the state has claimed it, and court has upheld it, then circ evidence cant be used. - Easier to waive private that it is to waive state privilege. Because of private privileges individual nature can be waived by the client themselves. State – generally attached to gov, cant be waived by individuals, must be waived by relevant minister 98 - Private priv – party themselves must claim private privilege, but in state privilege, court is allowed to uphold it even if the parties don’t claim it Instances where state privilege applies - (1) Matters concerning state affairs - (2) The protection of police methods or investigation - (3) The informers privilege - (4) Access to information in police dockets (1) Matter concerning state affairs - Battle between the state and the court - When it comes to state priv, who should have the final say? Court or executive? Eg minister claims state priv, should a court be able to override the decision/the claim of state privilege in the interests of justice? - Eng courts already accepting that state has the final say. Not surprising, as they believed in parliamentary supremacy etc. Powers of executive were quite extensive at the time - 1942 house of lords Duncan v Cammell – unanimously held that a court could never question a state priv claim if it was made in proper form what is proper form?? Courts ready to defer to state - 1967 break away from position in Duncan case – Van der linde v Calitz appellate case in SA breaks away from this. Even though technically the court should’ve followed HOL decision bc it was governed by 30 may 1961 provision. Looked at 1931 privy council decision in Robinson v State of Australia, which held that courts have a residual power to determine whether executive objection has to be upheld - Vindicated in HOL in Conway v Rimmer – judicial control over executive objection was reasserted – principle that absolute submission to the views of the executive on matters relating to public interest is not acceptable - Battle btwn exec and courts continues – uses legislation in SA - 1969 General Law Amendment Act – section 29 reversed van der linde decision exec had absolute and unquestionable power to withhold evidence from the court if the executive was of the view that the disclosing of that information would be against public interest - Position of section 29 was later relaxed in s25 of the Gen Law Amendment Act – but this relaxaion was chipped away at when 66(1) of the Internal Security Act was enacted – Section 66(1) ousted the courts jurisdiction on matter concerning state security (reaffirmed previous position) - However: s66 repealed once we had interim const – would not have been valid under the constitution either way - Constitution Section 165 vests judicial authority in the courts and confirms Separation of Powers doctrine. Cannot tolerate a situation in which the executive has the final say on matters concerning the admissibility of evidence in the courts Section 32 – access to info held by the state Section 34 - access to the courts and a right to a fair hearing Test in regard to state priv is thus whether the disclosure of the info would be in the interests of justice when two or more competing claims are assessed Two primary competing interests – confirmd in Independent Newspapers v Minister for Intelligence Services (CC) (2008) case – the two competing interests were the right to open justice and the duty of the state executive to implement national security - Court is entitled to examine evidence in order to establish the extent to which the interests of justice are affected – court has to assess the information. Court is not bound by the ipse dixit of the executive or unproven assertions of a Minister - Court entitled to judicial peak to examine documents concerned, regardless of classifying it for eg the document being national security. Doc must be not disclosed in order to protect national security. - Judicial peak - allows court to have a look at the document itself. Determine if the doc should be privileged or not Swissborough Diamond Mines v Government 1999 Transvaal Division decision – here court said that the question of state privilege in SA should be approached in the following manner: - Court is not bound by the ipse dixit of any cabinet minister - Court is entitled to scrutinise the evidence - Court must balance extent to which it is necessary for the information to remain hidden - Onus should be on the state to show why it is necessary for the information to remain hidden 99 - Court should call for oral evidence and should permit cross examination or probe the validity of an objection itself THEREFORE, Court thus has final say in information held by state and whether or not it should remain privileged or not – court may view info to determine this Independent Newspapers v Minister for Intelligence Services - Test: whether disclosure or non-disclosure would be in the interests of justice when two or more competing interests are assessed - Right to open justice vs duty of state executive to implement national security - Court entitled to a judicial peak - [55] It follows that where a government official objects to disclosure of a part of the record before a court on grounds of national security, the court is properly seized with the matter and is obliged to consider all relevant circumstances and to decide whether it is in the interests of justice for the documents to be kept secret and away from any other parties, the media or the public. This forms part of a court’s inherent power to regulate its own process that flows from section 173 of the Constitution. In my view, a court in that position should give due weight both to the right to open justice and to the obligation of the state to pursue national security within the context of all relevant factors… In deciding whether documents ought to be disclosed or not, a court will have regard to all germane factors which include the nature of the proceedings; the extent and character of the materials sought to be kept confidential; the connection of the information to national security; the grounds advanced for claiming disclosure or for refusing it; whether the information is already in the public domain and if so, in what circumstances it reached the public domain; for how long and to what extent it has been in the public domain; and, finally, the impact of the disclosure or non-disclosure on the ultimate fairness of the proceedings before a court. These factors are neither comprehensive nor dispositive of the enquiry. (2) Protection of police methods of investigation - Court may uphold a claim of privilege if disclosure would be contrary to public policy because it would expose the methods of police investigation - Eg R v Ableson – accused charged with contravening the liquor act requested an officer to reveal certain reports that had been made concerning the charges. refused to give access because they were confidential. Court upheld the claim based on the fact that disclosure would expose the polices’ method of investigation - NB that the court ensures that the claim is not a cover up to hide unconstitutionally obtained evidence (3) The informers privilege - Regulated by s202 CPA and finds authority in Eng law - No question may be asked and no document may be received in evidence that would tend to reveal the identity of an informer or the content of the information supplied by her - Duty on the court to ensure priv is upheld regardless whether or not the parties claim it – because this is sensitive info, revealing it could have detrimental consequences for the informer - Informer may disclose his or her identity provided public policy does not require that the identity remain secret (public interest outweighs private interest) - Who is an informer? Person who has a relationship with the police, provides info, identity must be kept secret bc its in the public interest - Why do we protect the informer? – Rationale of the informer’s privilege Safety of informer and the family of the informer Encourage people to come forward and serve as informers R v ableson – the whole business of crime is conducted in secret and devious ways against the interest of the state, and the work of defeating the operation of criminals must also be conducted in the similar method Protect the informer themselves so they can work in the future - Conditions to be met before the informers priv is upheld (a) Communication must be made in confidence (b) Confidence must be an important aspect of the relationship between the informer and his controller – informer must be confident that the info it shares won’t be disclosed, there must be a foundation of confidence between them (c) Relationship between the informed and controller must enjoy community support 100 (d) Interests of non-disclosure must outweigh the interests of justice Relaxed where: It is in the interests of justice It is necessary to show the accused’s innocence Reasons for secrecy no longer exist (Confirmed in Minister of justice: in re Pillay) - Questions re informers priv (constitutionality?) Accused has various rights in the Constitution - Right to fair trial (s35(3)), accused has a right to challenge evidence, adequate time to prepare defence etc - if informers priv is upheld then the accused doesn’t have access to info, and no opportunity to cross examine the informer in court – cross examination nb in trial proceedings S32 – right to access to info held by the state – how to navigate this? clearly there are rights that are infringed. USA case McCray v Illinois and Roviaro v US focus on whether or not the informer was a material witness. In deciding whether the rights of the accused or the rights of the public should prevail the courts look at the question of whether the informer is a material witness Material witness – priv in the USA is lifted. But if not, then priv is upheld When you look at USA approach, informers priv is not unconst, but have to weigh informers priv against right to fair trial In SA: section 35(3) courts will look at the circumstances of each case and examine to determine whether non-disclosure would affect the accused right to adduce and challenge evidence. Eg if the informer is a non-material witness, then it may be found that there was no const infringement. But if material – court has to determine whether the limitation to rights of the accused is a justifiable one, entail a section 36 analysis. Similar approach in respect of section 32(1) of the const – the non disclosure would be prima facie unconst, but the facts of each case would have to be considered in determining whether non-disclosure was justifiable limitation on the facts – approach compatible with what the courts found in Shabalala v Attorney General Tranvaal Is the privilege constitutional? o Els v Minister of Safety and Security o “… the advent of the new Constitution should not, in the public interest, have the effect of watering down the informer privilege to any significant extent, even though it does vest in the courts a wider discretion to enforce disclosure of the identity of informers than they previously had. What Fannin J said in D Suliman v Hansa 1971 (4) SA 69 (D) at 73D G is of course still relevant. o Outlined rationality of informers priv and how the rule has been applied. Rule is a public policy rule, aims to remove deterrent to detection of crime o Fundamental basis for informers priv. If their ID were exposed, would deter people from coming forward o Constitution: must do a limitations analysis o Emphasise that in doing this, court must not be inflexible – court must not place too much NB on the rights of the accused but do a careful balancing of many factors in determining if the infringement is a reasonable and justifiable limitation to the rights of the accused. o Considerations taken into account: rule on informers priv can be relaxed in instances where it is material to the ends of justice, when it is necessary to relax the rule to show that the accused is innocent, or in instances where the reason for secrecy no longer exists eg in cases where people already know the ID of the informer o Basically even tho the const vests a wider discretion to enforce disclosure of ID of informer in the courts, it shouldn’t have the effect of watering down the extent of the informers priv to a significant extent. o Informers priv persists post the const bc there are good reasons why we have this priv, courts need to balance rights and interests of justice etc. in ways that it does not unjustifiably benefit the accused (4) Access to information in police dockets - 101 - Does the accused have access to police docket info? Before 1995, could refuse to show docket to accused. “blanket docket privilege” – R v Steyn Accused couldn’t access any info in docket, including witness statements Constitution came about – problematic bc right to fair trial and right to access to info, right to have enough info to prepare defense - Con court reversed the rule in Shabalala v Attorney General Decision not based on access to information, instead based on right to fair trial Court makes NB findings re. access to info held by the state Blanket docket priv is inconsistent with const, claim by the access for access cannot be defeated by the argument that the documents are protected by docket priv Const court held that the right to a fair trial includes access to the statements of witnesses Depending on the circumstances, prosecution may be able to justify non-disclosure on the basis that it is necessary for the right to a fair trial Non-disclosure may be justified if it would lead to the disclosure of the identity of an informer, or state secret, or intimidation of witnesses or if it would otherwise prejudice the proper ends of justice If the prosecution alleges that the ID of an informer may be disclosed, the court still has discretion to order disclosure if it finds in the circumstances of the case that the prejudice of the admin of justice is not so great as to justify the infringement of the accused’s right Also accommodates section 34 right to have disputes settled by court of law Court needs to balance right to fair trial against legitimate claims or interests of the state, such as for eg state priv. NB court based decision on right to fair trial, not access to info held by the state. Bail proceedings - Does Shabalala extend to bail proceedings? - Section 60(14) CPA – enacted to rectify a misconception raised by Shabalala that the defence has access even at bail stage - ‘Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for purposes of his or her trial.’ - Limited to bail proceedings, doesn’t clash with con court decision - Given that section 60(14) empowers prosecutor to deny a bail applicant access to docket, do you think it is constitutional? S v Dlamini Held that section shouldn’t be read as sanctioning a flat refusal on the part of the prosecution to divulge information relating to the pending charged against the bail applicant Vests in the prosecution a discretion to refuse to disclose docket but it is not unfettered. Court may order it to be lifted to give applicant a reasonable opportunity of success/meet requirements of rules on bail Promotion of Access to Information Act (PAIA) - Right of access to information held by the state. - Right of access to info held by state and priv body (info required for the exercise of ay right) - Also has certain limitations Eg section 7(1) – doesn’t apply to record of public or private body used for criminal or civil purposes if access to the information is provided for in any other law Section 7(2) – any info obtained in contravention of section 7(1) is inadmissible if its exclusion would be detrimental to the administration of justice Eg section 40 – the info officer of a public body must not disclose information except if the priv is waived. 102 TERM 3: Revision Questions PAST PAPER: 2 APRIL 2019 Question 1 First thing to identify: age of the participants, etc. (“red herrings”) Then make major note of: gives the scope/focus at the end Prosecution wishes to adduce evidence of general character – therefore general charac relevant & similar fact evidence Technique on how to approach: identify the instruction – discuss whether evidence A & B can be admitted Refer to case law and legislation to justify your answer What “tripped students up” - Students saw character evidence and immediately went into S197 – this was incorrect bc deals with bad character and previous evidence - Wrt adducing evidence, the relevant section is S211 - Dissect the evidence provided: o Beer-drinking Low prohibitive value – no connection Make the distinction – look at R v Davis: there has to be a connection between the evidence in question and the crime in question o The previous conviction for sexual assault This would fall squarely of S211 of CPA: the evidence is inadmissible – it has low prohibitive value Cannot be used to prove that an accused has been convicted of an offence previously Only time it can be used is where it has been provided for by the CPA S211 is similar to the similar fact rule, which is relevant for this scenario Could show that she had a propensity to behave a certain way – use similar fact evidence to show she behaves in a specific pattern We follow S v D cases – as well as Boardman (I think?) case Second part of question: - Use the complainants evidence and other charges where they did no testify: we did not cover this yet, has to do with hearsay Question 2: - Giving your opinion: be cautious. Not really warranted. Always back up your opinion with case law etc. Write a legal opinion, and justify using the law. Other past paper: Did not get to 103 SECTION 4: THE EXCLUSION OF RELEVANT EVIDENCE: UNCONSTITUTIONALLY OBTAINED EVIDENCE Textbook Chapter 12 De Vos W ‘Illegally or unconstitutionally obtained evidence: A South African perspective’ 2011 TSAR 268-282 S v Hena 2006 S v Mphala 1998 S v Mark 2001 S v Tandwa 2008 S v Mthembu 2008 S v Lottering 1999 (Study only the discussion of this decision in Principles para 12.9.4) S v Madiba 1998 S v Soci 1998 (Headnote only) S v Naidoo 1998 (Study only the discussion of this decision in Principles paras 12.9.4 and 12.10.1) S v Pillay 2004 (Study only the discussion of this decision in Principles para 12.9.4) Amod v S 2001 S v Odugo 2001 Savoi and Others v National Director of Public Prosecutions and Another 2014 Unconstitutionally Obtained Evidence ● ● ● ● ● Court may exclude evidence even though it is relevant Scenario - Assume you and friend are coming back from party, Sunday morning, had a bender with lads, coming back from party and on way back you’re attacked by two men, steal LV handbag, diamond ring (wow I’m rich) – give them the stuff but then they physically assault you. Then they get found and charged, but when the police were doing their thing they punched accused 1 to force him to give the location of accused 2. Should the court admit this evidence? - People have different views on this. ie whether it should be admitted. Some say it should be excluded some say it shouldn’t etc Evidence obtained in a way that breaches a right in the constitution - Two competing interests, accused rights must be protected but we recognize that the state has an interest in ensuring those who are guilty don’t go unpunished - Think about this – exclusionary approach often leads to acquittal of people are factually guilty, can we even afford to have this happen in a country like ours? - But also historical factors and the rights of the accused being such a sensitive issue - Factor in interests of the complainant – need to feature prominently - Assumed that the interests of the complainant are subsumed by the interests of the state – state reps the victim but representing community at large - But without expressly putting victims interests on the table, one wonders if the interests of the complainant gets lost in the process � issues based on own persona views. Subject of great debate – exclusionary approach vs inclusionary approach Inclusionary approach - Evidence should be admissible regardless of how it was obtained – matters not how it was obtained, should still be admitted - Origin in English common law - Reasons why this is adopted – rationale includes fact that ends justify the means – conviction of accused or uncovering of truth justifies the admittance of the facts - Arguments that the relevance of the evidence is not impaired by the means it was obtained - Argue the court shouldn’t stray from the issues of a case by focusing on the conduct of the police rather than conduct of accused – courts blurring the issue because the main issue should be the conduct of the accused in a criminal matter - Also there are other remedies to other people whose rights have been infringed eg sue the police or const damages – lecturer thinks this is a good argument, if we’re concerned about high crime rate, where there has been a breach of const rights we should consider that the accused has other remedies. Exclusion is not the only solution 104 - ● ● ● Arguments that the exclusionary rule doesn’t deter police from breaching const rights, in response to view that by not including it, we as a society deters the police from obtaining evidence in this manner and those in favor of inclusionary approach say that actually the exclusion doesn’t deter the police. - Argue that excluding it just protects guilty persons and that it restricts the police from performing their duties and excludes the truth from the truth finding process - Consider these – think of your personal views Exclusionary Approach - Origin in SCOTUS - Should be excluded even if relevant, goal is to protect basic human rights of accused persons but also promote due process - There are many countries who have adopted this, especially those who abandoned parliamentary supremacy and adopted a constitution - Most countries will adopt some sort of exclusionary rule but qualify it by giving court discretion to decide if it should be excluded - Distinction between rigid exclusionary rule and a more rigid rule - Strict rule - evidence will be excluded even if relevant if its unconstitutionally obtained - Relaxed - grants court a discretion - Reasons for this rule eg deter police from obtaining evidence in an unconst way, also arguments that counter this - Another argument – it promotes due process. Does away with the idea that the truth must be ascertained at all costs. Promotes idea that the correct process must be followed in order to promote the interests and rights of parties involved - Rationale is that unconst evidence should be excluded because its admission compromises other values that we might hold as a society � NB in SA, due process is const guarantee. If courts admit it then it means that the court are acting contrary to the provisions of the const. Do we want this? - Note the reason is not just about protecting the accused rights but its broadly about ensuring that the courts uphold constitutional principles. In line with the argument that it promotes judicial integrity. If court admits tainted evidence, then it undermines the integrity of the judicial system - Also - doctrine of legal guilt: exclusionary rule upholds this doctrine. Person can only be found guilty if the correct processes have been followed. - Mixed feelings about this emphasis on procedure bc there is a tendency to struggle when it comes to following procedure. Striking a balance is very important - Also reinforces existing rules – secondary and primary rules in the textbook. In the case of police officers, we know that they have primary rules that govern their conduct, this rule ensures that these primary rules are upheld by the police. Recognition that there is need for a middle ground - Neither rule is ideal - If you strictly apply exclusionary rules then you risk letting guilty people go free on technical grounds - Recognizes that by applying a strict inclusionary rule, then state runs the risk of violating fundamental rights - Recognize the limitations of a strict approach, most countries eg Ireland, NZ developed a flexible exclusionary rule/qualified exclusionary rule where they follow the exclusionary rule but give the court a discretion to decide when to deviate from it – qualified exclusionary rule - Interesting to see how the courts navigate this – have a look at section 35(5) of the constitution and decide or determine which approach SA follows Dense chapter – ch12. Use lectures as a guide of whats important. Eg not going to look at US and Canada but know that ours has been influenced by these legal systems courts have used approach similar to US by looking at factors such as judicial integrity, the conduct of the police in arresting the accused, and inevitability of the evidence being found through lawful means - US law influences SA - 35(5) includes const warnings – largely mirror the USA Miranda case. - Section also mirrors section 24 of the Canadian Charter – influential in shaping SA law 105 The common law: ● ● ● ● Ito section 252 of the CPA, if the CPA does not provide for a certain area of law or certain case then we apply the law as it was on the 30th May 1961. This means that we apply the English Common Law ○ This applied a fairly strict inclusionary approach. The test used there is relevance; the court would not concern themselves with how the evidence was obtained except in criminal cases where the judge had a discretion not to admit evidence if the strict rules of evidence would operate unfairly against the accused. ○ What happened particularly pre 1994 is that the courts tended to use the common law to include the evidence rather than to exclude the unlawfully obtained evidence. This is problematic obviously, but occasionally you would see courts such as those in S v Forbes for example – the courts would use their discretion to exclude evidence and the grounds on which they would do this were fairness and public policy. ○ NB to discuss common law because it has not been rendered redundant by the provisions of section 35(5) of the constitution. ○ S35(5) only applies to instances where the improperly obtained evidence was obtained in a way that violated a right in the BOR. ○ Still have many instances where evidence is obtained unlawfully but does not breach a right in the BOR. For those instances where the evidence was obtained unlawfully (breached statute) then we would use the common law. Courts to apply the common law discretion. When the courts apply this discretion the courts use the test from section 35(5) as a guide. The interim constitution ● ● ● Did not contain any express provision dealing with the admissibility of unconstitutional obtained evidence. ○ Regardless courts were very mindful of the implication of having a constitution. So they ensured the constitutional guarantees were protected – if they didn’t this would undermine the rights provided for in the constitution. ○ Frequently saw the courts exclude unlawfully obtained evidence – by relying on the appropriate relief provision found in section 7(4) of the interim constitution. In other instances they would adapt their common law discretion in order to meet the demands of the constitution Courts tended to move to the opposite side of the common law discretion during this time and applied a very rigid exclusionary approach. ○ Neither of the rigid approaches is ideal. The unfortunate thing that therefore happened during the early constitutional era was the movement toward a rigid exclusionary approach. We now have section 35(5) of the constitution, but the NB thing to know is that just because we have section 35(5) doesn’t render the decisions that were decided under the interim constitution irrelevant. ○ These decisions played an NB role in developing s35(5) as well as our jurisprudence. ○ Three trends that were noteworthy in the decisions that were decided under the interim constitution which were influential in the drafting of section 35(5): ■ The fact that the courts under the interim constitution tended to emphasize the right to a fair trial which was contained in section 25(3) of the interim constitution. NB aspect of s35(5) of the final constitution. ■ The courts under the interim constitution also frequently relied on their discretion to exclude unconstitutionally obtained real evidence. When we discuss the specifics of unconstitutionally obtained evidence ito s35(5) will see that there are some technicalities with real evidence. What courts under the interim constitution did wrt real evidence is a big part of our jurisprudence. ■ The courts under the interim constitution tended to emphasize that although the interests of society were relevant, they should not be prioritized over the protection of human rights as guaranteed by the constitution. Find that there are lots of differing views on the admissibility of unconstitutionally obtained evidence, courts have held that their duty as a court is not 106 ● ● ● ● ● prioritize views of the public – they must take into account the general interests of society in protecting human rights. Major influence on our jurisprudence. Now have section 35(5) ○ States that evidence obtained in manner that violates any rights in the BOR must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. ○ HC’s often make reference to the Canadian approach and decisions. S35(5) mirrors section 24(2) of the Canadian Charter. ■ S24(2) of the Canadian charter states that anyone whose rights or freedoms as guaranteed by the charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the courts consider is appropriate and just in the circumstances. ■ Further says that where in proceedings under section 1 if a court concludes that evidence was obtained in a manner which infringes or denies any rights guaranteed by the charter the evidence shall be excluded if it is established that, taking into account all circumstances, the admission will bring the administration of justice into disrepute. Section 35(5): “Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” Both our s35(5) and s24(2) of the Canadian Charter are described as a qualified exclusionary rule. They are essentially a middle ground between the rigid US exclusionary rule and the rigid English inclusionary rule (that we followed pre 1994). ○ The first part contains both a directive and a discretion. Directive – evidence must be excluded if it violates a right in the BOR. This directive will only become operative where the admission of the unconstitutionally obtained evidence would either render the trial unfair or be detrimental to administration of justice. ○ With regards to the second part the courts have a discretion; discretion to decide if the evidence would either render the trial unfair or be detrimental to the administration of justice. In applying discretion – must make value judgment. ■ If found to either make trial unfair or be detrimental to the administration of justice then the courts have no discretion; must exclude the evidence. When exercising their discretion the courts must have regards to the facts and principles of a fair trial, as well as considerations of public policy. Trial being unfair and being detrimental to the administration of justice are separate consequences. Distinct from one another. They require different considerations. ○ Fairness of trial relates more to the accused’s rights. Narrow issue concerning the rights of the accused. ○ The administration of justice – broader issue. Takes into account not just the interests of the accused but the interests of society. Things like public policy. 1st leg – whether the evidence would render the trial unfair 2nd leg – whether the evidence would be detrimental to the administration of justice ● ● ● ● 2 distinct tests however the one encompasses the other – 1st leg will always be detrimental to the administration of justice. This is because the interests of the accused also fall under the overall broad interests of the administration of justice. BUT a finding that admission will be detrimental to the administration of justice will not necessarily lead to a conclusion that the admission of the evidence would render the trial unfair. S v Naidoo: ○ It was pointed out that the words “or otherwise” in s35(5) mean that an unfair trial is always detrimental to the administration of justice. But the reverse is not the same. 107 Factors that must be considered when doing a s35(5) enquiry: There are more but we are going through the most important ones. ● ● ● ● The threshold test: ○ Relates to the fact that when applying unconstitutionally obtained evidence. One must first consider whether the breach concerned is of a constitutional right or of a non-constitutional right (i.e a breach of some statute) ○ S35(5) only applies where the breach is of a constitutional right. In instances where it is not, the common law discretion will be applied. ○ First enquiry therefore – see if a constitutional right has been breached. If it is a breach of a constitutional right then proceed with s35(5). If not, use the common law. A causal link ○ Is there a casual link between the violation and the procurement of the evidence. ○ S35(5) does not expressly provide for the requirement(s) of a causal link, the test is quite simple – would admitting the evidence render the trial unfair or detrimental to the administration of justice. ○ Makes no mention of a causal link. But will see in cases the courts make mention of a causal link. ○ Has been argued that it is not ideal to have a strict causal link requirement/test in the context of unconstitutionally obtained evidence. This could compromise judicial integrity. If certain officials knew that unconstitutional breaches were tolerated if they were remote, that might influence their conduct. To avoid this the strict causation test should not be applied in this context, but we might have a more relaxed causation test assessing if there is a connection between the violation and the obtaining of the evidence. Standing ○ Do we require standing in our law? In other words can it only be people with standing who can come to court and claim that they want to rely on s35(5). ○ This is clearly not a requirement in our law. In S v Mthembu the judge confirmed that standing is not a requirement. Any person not just the accused – the wording from s35. Also applies instances where the evidence is obtained by private individuals ○ Interesting and prescribed case —> S v Henne. ○ This case was written by Plaskett J. In this case the police had a working arrangement with the community to try and basically keep crime in check. In this case the evidence was actually obtained by private individuals. Plaskett makes a damning judgment about police officers outsourcing their duties to members of the public. ○ NB thing – s35(5) also applies to private individuals. Courts fluid in their approach with section 35(5) ● ● There are many instances where the court says for example that the accused’s rights were breached but the evidence should be included nonetheless because the police were acting expeditiously for example. Or because the police also obtained real evidence This area of the law of evidence isn’t as black and white as we might hope. This is because the courts have to apply a discretion as to whether the admissibility of the evidence would render the trial unfair/detrimental to admin of justice. 5 Categories in which s35(5) was applied: 1. Where the accused was not properly informed of his rights prior to making a statement or a pointing out ● This class of breaches involves testimonial utterances; particularly when the accused incriminates himself. ● Comes from the accused and therefore relies on the accused’s cooperation for its existence. 108 ● ● ● ● ● Generally in such cases the accused is unfairly conscripted against himself; the courts would therefore exclude the evidence on the basis that it would render the trial unfair. The courts reason for this is that evidence obtained in a way that forces the accused to incriminate himself goes to the heart of the privilege against selfincrimination. NB aspect of our law, but the privilege only applies to testimonial utterances. Doesn’t apply to real evidence. Where the accused has been unfairly conscripted against himself then the privilege against self incrimination has been breached and the courts would find that admitting that evidence would render the trial unfair. Courts consider things such as if the accused was legally represented; was the accused aware of his rights; what was the accused’s level of education and experience in exercising this option – could he be expected to know of the privilege against self incrimination. Court will also take into account if the accused will suffer any prejudice if the evidence were to be admitted Prejudice = NB aspect in the courts considerations in this regard. See S v Lottering in this regard. In this case the accused was not informed of his rights but the court balanced his rights that were breached against the conduct of the police. ○ NB point – where the accused has been compelled to incriminate himself or unfairly conscripted against himself, the court would exclude based on the fact that it would render the trial unfair. Breaches privilege against self incrimination 2. Where the evidence was obtained by means of an illegal search ● In cases where evidence is unconstitutionally obtained because of an illegal search the courts often look at the fact that there are often factors that weigh in favor of admitting the evidence. ● The primary reason for this is because in these cases where an illegal search is conducted usually we are not dealing with testimonial evidence which requires the cooperation of the accused. ● Wrt to an illegal search, usually the rights being breached is the right to privacy. Although the right is not trivial, it doesn’t necessarily lead to an unfair trial because the right to a fair trial is more closely linked to the privilege against self incrimination. ● In these instances the court will look at the evidence separately from the accused. Often in illegal searches real evidence is found which consists of corporeal things which are said to speak for themselves. The courts will therefore often hold that real evidence would rarely operate against an accused because it existed independently of the violation of the right. It existed in and of itself. ● Courts will often also look at whether the police officer was acting in good faith. Courts will overlook a breach sometimes when acting in good faith or the interests of expedience. ● Courts will still exclude evidence gained from an illegal search when it would undermine fundamental constitutional values, also when the infringement of the accused’s right to privacy was severe. Not only a technical breach. ○ Prescribed case – S v Pele ? Will be discussed later, but useful to read the judgment 3. The evidence was obtained as a result of illegal monitoring of a telephone line ● There are interesting cases in this regard – see S v Naidoo ● Generally, this type of evidence will be included because it does not breach the privilege against self incrimination. The courts made a mistake in S v Naidoo; decided wrongly ● Where there has been illegal monitoring of a phone line some complications come in – e.g statutes that prohibit the unlawful tapping of phone lines. Furthermore, evidence obtained through the unlawful tapping of communication usually produces derivative evidence – this is secondary evidence. 4. Evidence which is forcibly and involuntarily taken from the person of the accused ● Things like a persons a physical features or mark (fingerprint) – this is know as autoptic evidence ● In SA we take an inclusionary approach when it comes to autoptic evidence ● S225(2) of the CPA expressly provides for the admissibility of fingerprints and palm prints, foot prints. We therefore do not necessarily exclude this type of evidence. ● There are cases where the courts have actually upheld the involuntary taking of blood samples, finger prints, voice samples, evidence from an ID parade. 5. Evidence that is obtained as a result of improper treatment of a witness ● When a witness is mistreated this has nothing to do with the accused, does not implicate the accused. 109 ● Such evidence would not really render the trial unfair. However it may still be excluded on the basis that admitting evidence gained from mistreating a witness will be detrimental to the administration of justice. Week 4 Recap: - - There are two approaches to dealing with unconstitutionally obtained evidence: o Inclusionary approach o Exclusionary approach Issues with applying strict versions of either of these tests, most jurisdictions adopt a flexible approach which encompasses both Therefore: S35(5) Constitution: middle ground between strict application of either inclusionary or exclusionary approach CL applied often (view above), using S35(5) as a guide! Analysis of the two legs of the Section 35(5) test: First leg: “Render the trial unfair” • Application o o • Relates only to accused or to the accused and prosecution? • In this context referring to fairness of trial, it relates to the accused • The way that S35(5) is written – it primarily applies to accused Consider textual setting of s 35(5) • Includes directive and discretion • If court finds admission evidence would be detrimental to administration justice, the courts must exclude – there is no discretion • However, Decision about whether the admission of evidence would be unfair/detrimental, the court has discretion • This area of law is not as clear cut as we would like – it is quite fluid • Scholars have tried to look at classes/categories of jurisprudence where there has been breach of constitutional right in finding real evidence, derivative evidence etc. • Courts often refer to aspects which would normally be concerned under second test – it is a bit tricky • Therefore, NB to read case law! Content of right – S v Dzukuda and Others o Right to fair trial is Comprehensive right o Embraces concept of Substantive fairness 110 o • • Case by case: no closed list of factors when establishing if fair trial The court's discretion o Wide and flexible: We know S35(5) gives courts wide and flexible discretion to determine if admission evidence unfair o Determined on case by case basis o Factors to consider: • The nature and the extent of the constitutional breach • The presence or absence of prejudice to the accused • Due process vs crime control • Public policy S v Tandwa – relevant factors to determine trial fairness include: o Involved 8 people who broke into Standard Bank and looting 9.6 million • One of the accused was acquitted whilst 7 convicted – they appealed on basis of merits of case • Para 117: in determine whether the trial was determined in an unfair manner, the court must take into account the competing interests o The court's discretion must be exercised 'by weighing the competing concerns of society on the one hand to ensure that the guilty are brought to book against the protection of entrenched human rights accorded to accused persons' o Relevant factors include the severity of the rights violation and the degree of prejudice, weighed against the public policy interest in bringing criminals to book. Rights violations are severe when: o • They stem from deliberate conduct of the police or are flagrant in nature • There is a close causal connection between the rights violation and the subsequent selfincriminating acts of the accused. • Rights violations are not and resulting trial not unfair, if the police conduct was objective and reasonable and neither deliberate nor flagrant There is therefore a degree of flexibility used by courts – conduct of police plays an important role, but this becomes tricky as police conduct is under the second test. It is borrowed here to justify the finding under the first test! 111 Privilege against selfincrimination Identifica tion Evidence Derivative Evidence Waiver Trial fairness + Court's discretion Real Evidence Privilege against self-incrimination • • • An important consideration, what lies at centre of inquiry, is the degree of prejudice to the accused • Reason being first leg of the test pertains particularly to accused • This has to be weighed against keeping the guilty to book • Test laid out in Tandwa of how we determine what constitutes a severe breach versus breach not so severe Jurisprudence has been grouped in order for us to gain a better understanding of how the courts approach these matters • Within these categories, we will discuss relevant cases • First category being privilege against self-incrimination Privilege against self-incrimination – inextricably linked to rights of accused to fair trial • • • Exclusively applicable to testimonial utterances – this is a mistake that is often made NB Pre-trial stage – rights and warnings • It requires that the accused must be given warnings at pre-trial phase • All depends on facts of the case: the conduct of police influences this decision Court’s approach: • S v Lottering • The appellant had stabbed the deceased on the back, and then ran unto night club in KZN • Witnessed by someone – who stopped an on-coning police van and informed them he ran into nightclub – they then went to nightclub and identified the accused • Accused was arrested, and demanded to know where the knife was -> it was found in the nightclub as was handed to police by another person 112 • • • The accused was not told about his right to remain silent, and right to representation • The trial court decided to admit evidence • On appeal, it was challenged on basis that he was not informed of his constitutional rights (i.e. not been given his warning) The court goes through the factual and legal considerations • Accused rights had been breached – incriminated himself in the incident • In our constitutional society, it is imperative that the rights of the accused are looked after • Police don’t merely pay “lip service” to these constit protections • S35(5) grants the courts a certain discretion which the court must exercise by weighing up different competing interests • Con does not tolerate deliberate or flagrant violation of constit right – any evidence obtained in this matter must be excluded • • Using words using earlier, when weighing up these interests, court must consider the severity of the breach • Whilst the con does not tolerate deliberate/ flagrant violation, there are instances where it is not deliberate or flagrant and can be admitted • In those instances, the court should admit the evidence In this case, the court found the breach was not deliberate as policeman had to act expeditiously and had acted reasonably • He had done what any reasonable officer would have done • The court also noticed in this instance there were no threats or intimidation, the appellant acted voluntarily • Prejudice: the argument that the accused was prejudiced bc not informed would have been speculative as he had not testified that he was in fact prejudiced by not being informed of these constit rights • Court finds that admitting the evidence would not be detrimental to admin of justice, by implication the court was satisfied that the admission of evidence would not have rendered trial unfair • Ask yourself the question: do you agree with this judgement? • • It is this evidence which is being tested in the appeal court Phenyane thinks the policeman was being imprudent: there was no rush in the moment where he needed to obtain evidence from accused without giving him his warning. Sounds like it was relatively calm in that accused did not run away, resist etc. There may have been negligence on part of police. Phenyane understands policemen are human and sometimes when called upon, they may forget to do certain things which the courts are willing to excuse. S v Soci 113 • The court made a different finding • In situation where accused was not informed of constit right, the evidence was to be excluded • Tragic case (she encourages us to read it): women who was brutally murdered by her gardener • Accused was charged with murder and robbery – when the accused made the pointing out, the police officer had not informed him of his right to legal rep • Court said we must accept that if he had been properly informed, he would have gotten rep and he would not have made the pointing out • The evidence of pointing out was excluded • Adequacy of warnings: • No hard and fast rules • Each case must be decided on own facts • This all depends on personality and characteristics of accused: level of education, background etc. • Accused who is well-educated, has in previous instances been charged with crime, familiar with system etc. - Court may find failure to inform does not render trial unfair • • • • Compare to a first-time offender who is not as educated – court may find it is imperative that policeman give adequate warning Ask yourself: should there by a blanket rule regarding the giving of warnings, or if this practice of considering all relevant factors is sufficient? S v Naidoo • Go read the cases, full judgement of Pillay (NB) – these cases are important in this regard • Ask yourself: Was the court’s finding that admitting the evidence in question would render the trial unfair correct? S v Pillay Bails to take over • • Court’s approach: o S v Naidoo – Note criticism of judgment o S v Pillay – Sequel to S v Niadoo Waiver o Accused must know and understand what he or she is abandoning o S v Mphala and Another o “the police officer is not entitled to prevent advice being given” Derivative evidence 114 • Statutes authorize designated officials to compel a person to answer questions which may or may not be selfincriminating • These are not unconstitutional provided that answers are not used against examinee in his capacity as an accused in subsequent criminal proceedings • But what about the admissibility of derivative evidence • Evidence not equated to unconstitutionally obtained evidence • Evidence is not fruit of the poisoned trea • Should not be automatically excluded … Real evidence and evidence emanating from accused • Is privilege against self-incrimination confined to testimonial utterances? • But does it extend to real evidence emanating form accused? o • No: “the blood, like Everest, was there before the violation” Trial fairness vs Detrimental to administration of justice Evidence obtained at an identification parade in absence of legal representative • S v Mphala and Another • • Admission of such evidence does not render trail unfair and it is not detrimental to the administration of justice • On facts – not necessary for court to exercise its disciplinary function • Presence of legal representative would not have made a difference to outcome of parade Circumstances must be so extreme that it would be necessary to discipline the police 115 SECTION 5: HEARSAY 5.1 The Hearsay Rule Prescribed: S v Ndlovu, S v Litako, Mnyama v Gxalaba, S v Mpofu, S v Mbanjwa, S v Congella, Hlongwane v Rector Ch. 13 & 14 Common law - Hearsay evidence - an oral or written statement tendered in order to prove the truth of the matters stated and made by a person who was not a party to the case and not called as a witness o Assertion-oriented approach o Narrower definition o Hearsay evidence - generally inadmissible except… o Problems with rigid approach o Common law definition still relevant? What about the common law exception? Hearsay – Definition Section 3 of the Law of Evidence Amendment Act - “Evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”. - Declarant-oriented definition Applying the s 3 definition Step 1: • Ask what the probative value of the evidence is Step 2: ◦ Upon whose credibility does the probative value depends? General Rule • Generally inadmissible • Why? • Prejudicial • Unreliable • Cross-examination • Perjury • Observe demeanor • Rule is socially necessary • Protect individual rights against the abuse of state power • Right to a fair trial - The right to challenge evidence Exceptions to the general hearsay rule Section 3 of the law of evidence amendment act • Parties agree to admission • Source testifies later at proceedings • Interests of justice Section 3 of the LEAA • Section 3 is an exclusionary rule but… 1. Section 3(1)(a) – • Consent • • • • • Informed consent Criminal matters – accused must consent Unrepresented accused Represented accused - S v Congola • Consent by legal representative sufficient to render otherwise inadmissible hearsay evidence admissible Failure to object to admission 116 • Section 3 is an exclusionary rule but… 2. Section 3(1)(b) (read with section 3(3)) – • Source will testify later during the proceedings • Opportunity to cross-examine • What if accused makes statement out of court incriminating a co-accused but denies making that statement when they testify in court? • S v Ndlovu • Accused 3 & 4 deny making statements • HC decides matter ito s 3(1)(b) – Correct? • Section 3 is an exclusionary rule but… 3. Section 3(1)(c) – Interest of justice • Judicial discretion • Relaxing hearsay rule 1. The nature of the proceedings 2. The nature of the evidence 3. The purpose for which the evidence is tendered 4. The probative value of the evidence 5. The reason why the evidence is not given by the person upon whose credibility the probative value depends 6. Prejudice to opponents 7. Any other factor Section 3(1)(c) of the LEAA a) The nature of the proceedings ◦ Civil vs criminal ◦ Application vs Action proceedings b) The nature of the evidence ◦ Reliability ◦ Interest in the matter ◦ Statement made against the interests of the declarant c) The purpose for which the evidence is tendered ◦ Relevance ◦ Evidence serves a purpose? ◦ Would disregarding the evidence be absurd? ◦ S v Rautenbach – hearsay evidence more readily admitted if aim is to acquit the accused d) The probative value of the evidence ◦ Probative value weighed against prejudicial effect ◦ S v Ndlovu ◦ This not only means ‘what will the hearsay evidence prove if admitted?’ but also whether it will do so reliably e) The reason why the evidence is not given by the person upon whose credibility the probative value depends a) Urgent matter? b) Death of declarant c) Declarant out of country d) Inability to trace witness e) Frail health of witness f) Witness legally prohibited to provide information f) Prejudice to opponents ◦ Procedural prejudice ◦ Problems: Inability to challenge evidence, lengthen matter, burden ◦ Infringement of s 35(3)(i) of the Constitution? ◦ S v Ndlovhu ◦ Section 35(3)(i) ◦ Procedural Issues: Presiding officer must - 117 ◦ ◦ ◦ Prevent “venting” of hearsay evidence Ensure contents of s 3 are explained to unrepresented accused ◦ Protect accused from late admission of hearsay evidence NB: Hlongwe and another v Rector, St Francis College ◦ Common law exceptions g) Any other factor Common law exceptions 1. Res gestae statement • Statements which form part of the overall transaction, closely connected in time, place and circumstance. • Spontaneous statements • Instinctive response • Must be so closely linked to the event that… • S v Tuge o Original speaker unavailable o Stressful/exciting event o Statement made while stress is operative, therefore reduced reflective powers o Statement not a reconstruction of past event • S v Mpofu • Difficulty with res gestae statements • Composite acts • Where a statement and an act go together • Declarations of state of mind • Declarations of physical sensations • Admitted to show symptoms but not cause of physical sensation 2. Dying declarations • Dying person was less likely to lie? • Still relevant? • Mnyama v Gxalaba and another • Court should ideally be in a position to establish as closely as possible the mood of the speaker, the interests he was attempting to serve, and any reason he might have had for concealing his true sentiments from the witness or for exaggerating them. • Difficult exercise • Problems with oral statements • S v Mbanjwa • Nature of the proceedings • Purpose of the evidence • Reliability of witnesses • Corroboration Statutory hearsay exceptions • Sections 17 of the Civil Proceedings Evidence Act (CPEA) Proof of trial and conviction or acquittal of any person The trial and conviction or acquittal of any person may be proved by the production of a document certified or purporting to be certified by the registrar or clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such registrar, clerk or other officer, to be a copy of the record of the charge and of the trial, conviction and judgment or acquittal, as the case may be, omitting the formal parts thereof. • Hollington v Hewthorn • Section 34 the CPEA • Read with s 3 of the LEAA • Deals with documentary hearsay evidence • Applies in both civil and criminal matters • Section 34 the CPEA 118 Admissibility of documentary evidence as to facts in issue (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact, provided• Section 34 the CPEA • Definition: • Statement is made by a person if it is in her handwriting or it is signed or initialed by that person (s 34(4) • Requirements for admission: • Original document – unless copy is allowed ito - s 34(2)(b) and • Personal knowledge of matters contained in document or … - s 34(1)(a) and • Person who made statement must testify unless - s 34)(1)(b) and • No interest in the matter – s 34(3) • Weight of the evidence? • Section 35(1) of the CPEA • Consider all circumstances affecting accuracy of the document • E.g. Contemporaneity; interest in the matter • Statement cannot be used as corroboration 5.2 Common Law and Statutory Exceptions to the Hearsay Rule Prescribed: S v Mbanjwa, Savoi and others v NDPP Ch. 14 & 15 119 SECTION 6: The Admissibility and Proof of the Contents of Relevant Detrimental Statements 6.1 Admissions Principles: Chapter 16, Chapter 26 (Only paragraphs 26.1 and 26.2) S v Litako 2014 6.2 Confessions Principles: Chapter 17 120 SECTION 7: KINDS OF EVIDENCE AND THE PRESENTATION THEREOF 7.1: Oral evidence 7.2: Real Evidence 7.3: Documentary Evidence 7.4: Electronic Evidence and Related Matters 7.5: Scientific evidence 121 SECTION 8: WITNESSES 8.1: The competence and compellability of witnesses 8.2: The calling of witnesses 8.3: Refreshing the memory of a witness 8.4: Impeaching the credibility of a witness 122 SECTION 9: PROOF WITHOUT EVIDENCE 9.1: Formal admissions 9.2: Judicial notice 123 SECTION 10: EVALUATION OF EVIDENCE Textbook 30 R v Blom 1939, R v Blyth 1940, S v Jackson 1998 124
